Burleson v. Henderson

4 Tex. 25

• Court: Texas Supreme Court
• Decided: December 15, 1849
• Status: Published

Opinions

Hemphill, Oh. J.

The ground assigned for the reversal of the judgment rendered by default against the plaintiff in error and two others is the want of legal notice to this defendant in the court below of the pendency of the suit.

A citation ivas issued to eacii of the defendants, and by one of these the plaintiff in error was summoned to answer the petition of defendant here (who was plaintiff in the court below) exhibited against him, the two other defendants not being named in tlie citation. A copy of the petition served with the writ showed the suit was instituted against others as well as himself. The 9th section of ibe act to regulate proceedings in tlie District Courts (Laws of 1840, p. 360) requires tlie clerk to issue a writ or citation to each defendant; and the 10t.li section, among other requisites, declares that tlie writ11 shall state the “names of tlie parties to the suit.”

"Were, there no statutory provisions requiring the parties to he named in the writ, tlie omission of one or more of tiie defendants, under such circumstances as to preclude the probability of the defendants being misled as to the pendency of a parlicular suit or proceeding, would not he a fatal defect. If lie have notice of the action and of tlie time and place to set up his defense, the purposes of justice would he defeated by suffering an irregularity, which could not operate injuriously to (lie party, to paralyze further'pvoceedings in tlie cause.

In the case of Alexander et al. v. Brown (1 Pet. R., 684) the notice.stated the bond to be taken by virtue of an execution issued against William B. Alexander, whereas it was issued in fact against William B. and Richard B. Alexander. It was admitted that the bond was taken on this execution, and that this was the only execution in which the said William B. Alexander was a party. The notice was held sufficient, on the ground that the party could not mistake the case on which the motion was to ho made. The appellant refers to the case, and attempts to show that the principle governing that decision is not applicable to the cause under review. That the bond sued on here is joint and several, and the recital of the petition being exhibited against the defendant alone, would most likely mislead him, and induce the belief that a separate action had been instituted, and to which he was cited to respond.

Without inquiring whether the argument is well founded, or whether the citation, irrespective of the statute, would, under the circumstances of tills case, be fatally defective, it is sufficient to say that the statute requires the parties to he named iu tlic writ; and this provision being disregarded, the citation cannot be sustained. The defect might have been cured liad the defendant appeared and pleaded to the suit; hut having failed to do so, lie was not properly before the court, and the judgment is unauthorized, and must he reversed. (2 Tex. R., 422.)

It is ordered that tlic judgment ho reversed as to the plaintiff in error; that the citation he set aside, and that such further proceedings be had in the cause as may to law and justice appertain.