Belcher v. Wilson

31 Tex. 139

• Court: Texas Supreme Court
• Decided: April 15, 1868
• Status: Published

Opinion

Morrill, C. J.

—The petition in this case states two of the defendants, Belcher & Belcher, being indebted to Horton, their joint-and several promissory note in writing, and by which the said Belcher & Belcher promised to pay said Horton, &c. The petition states the indorsement of the note by Horton and requests judgment against all parties.

The sheriff’s return on the writ was, “Executed by handing John Belcher a copy of this citation, and accompanies this citation a certified copy of plaintiff’s petition.”

Horton was not cited. Judgment by default against all the defendants.

It is not alleged who executed the note, or in fact that any note was executed by those who are sued as makers. There is not that “ full and clear statement in the cause of action that is required by the statute.”

The service is also defective. The sheriff does not state that he delivered to the party in person a copy of the citation and a copy of the petition, as the statute requires, article 1433 of Paschal’s Digest, and in fact one of the defendants was not even thus defectively cited.

The judge must have taken the statement of some one that the citations were regular, instead of giving them a personal examination. Judgment reversed, and cause

Remanded.