Jones v. Stone

2 Wilson 313

• Court: Court of Appeals of Texas
• Decided: October 22, 1884
• Docket: No. 3038
• Status: Published

Opinion

Opinion by

White, P. J.

('Transferred from Austin.J

§ 358. Distress warrant proceedings; must comply strictly with the law; citation must issue at same time with the warrant. Appellee sued out a distress warrant against appellant Jones on the 17th of September, 1883, which warrant was executed on the same day by a levy upon property, which Jones replevied. On the next day citation was issued for Jones. The cause was within the jurisdiction of the county court. The papers were filed in the county court on the 3d of October, 1883. Petition was filed on the 8th of November, 1883. Appellant Jones moved to'dismiss the proceeding: 1. Because citation had not issued at the same time the warrant issued; and 2, because the petition was not filed in time in the county court. This motion was overruled, and on the 9th of January, 1884, judgment was rendered against Jones and the sureties upon his replevy bond for the debt sued on, etc. Held: Article 3119 of the Revised Statutes makes it the duty of the justice, at the time of issuing a distress warrant, to also issue a citation for the defendant. Distress proceedings, owing to the harshness of the remedy, are and always have been required to comply strictly with the terms of the law. This rule is uniform with regard to all extraordinary remedies. Thus, in Cordova & Co. v. Priestly, 4 Tex. 250, which was an attachment suit, where the action had been commenced without a petition, as required by law, as a precedent to the writ, the court held that the whole proceeding must be treated as a nullity, and the entire case be dismissed. In distress proceedings, where the citation is not issued contemporaneously with the distress warrant, the warrant is a nullity.

October 22, 1884.

§ 359. Same; petition must be filed, when. The citation and distress warrant were made returnable to the first Monday in November, 1883. The original petition was not filed until the 8th day of that month, which was one day after the appearance day of the term of the court. Article 3120 of the Revised Statutes requires that the petition in this class of cases must be filed on or before the appearance day, and this provision must be strictly complied with. [W. & W. Con. Rep. §§ 391, 790.]

Reversed and remanded.