Dikes v. Monroe & Brother

15 Tex. 236

• Court: Texas Supreme Court
• Decided: July 1, 1855
• Status: Published

Opinion

Lipscomb, J.

This suit was brought on a note of hand,

made payable by the appellant to Monroe & Brother. The petition is in the name of Hugh William Monroe and John Monroe, trading under the firm and style of Monroe & Brother.

The citation, as presented by the record, is in conformity with the petition, but it is alleged that there had been an alteration in the original citation, by an interlineation, making it to correspond with the petition; that before the interlineation it was “ then and there to answer the petition of Monroe & Brotherthat the words “ H. W. Monroe and John Monroe, doing business under the name, firm and style of,” were interlined. The Clerk notes in the margin of the transcript, that those words were interlined in the original; he does not State when or by whom, and the probability is that it was done before it issued by the Clerk. The Clerk who made the marginal note, is not the same who issued the citation. If an alteration had been made in the original, after service, it should have been directly impeached. The marginal note cannot be noticed. If, however, those words complained of as having been interlined had been omitted, the objection could not have been sustained; the petition was right, and the departure from it would not have been calculated to surprise the defendant, because the copy of the petition, served upon him at the same time, would have given him more particular and special information of the nature of the action. If the petition is correct, all that can be required in the citation • is substantially a conformity to the petition. We do not exact as much strictness as we would if the citation, with us, was, as the writ is in the Common Law practice, the leading process in the suit. The petition, in our system of procedure, is the leading process. (Cummings v. Rice & Nichols, 9 Tex. IL 527.) The judgment is affirmed with damages for delay.

Affirmed with damages.