Higgins v. Shepard

107 S.W. 79, 48 Tex. Civ. App. 365, 1908 Tex. App. LEXIS 452

Opinion

FISHEE, Chief Justice.

This is an appeal from a judgment by default against the appellant in favor of Charley Shepard and Mary Shepard, his wife, and the only question that arises is whether the citation issued and served upon her was sufficient.

The land sued for by appellees is situated in Hays County, and the appellant resides in that county, and this is not a case in which the law requires a copy of the petition to accompany the citation, and in this instance the return of the officer upon the citation shows merely a service of a copy of the citation upon appellant. The citation does not state the names of all the plaintiffs. It is to the effect that “Charley Shepard et uxor are plaintiffs.” The statute requires the citation to give the names of the parties, and there is also a law that requires judicial proceedings to be conducted in English. But if it could be assumed that “et uxor” means “and wife” and that she was the wife of “Charley Shepard,” that would not be sufficient, for it is held in Heath v. Fraley, 50 Texas, 209, that when the wife is a party plaintiff with her husband, it is necessary for the citation to state her name. This case is approved in Durham v. Betterton, 79 Texas, 224. In Weems v. Watson, 91 Texas, 35, it is held that the statutory requirements are mandatory. Judgment reversed and cause remanded.

Reversed and remanded.