Neill v. Brown

11 Tex. 17

• Court: Texas Supreme Court
• Decided: July 1, 1853
• Status: Published

Opinion

Lipscomb, J.

On the seventh day of February, A. D., 1853, an Act of the Legislature was passed, to take effect from its passage, by which the time of holding the District Court, for the county of Guadalupe, was changed from the seventh Monday after the first Monday in March, to the sixth Monday. There was a provision for all suits and processes, then issued, to be 'made returnable on the sixth Monday. On the 15th of February, A. D., 1853, the petition was filed, in this case, and the citation issued, same day, citing the defendants, who are the plaintiffs in error, to appear and answer the petition, on the seventh Monday after the first Monday in March, not regarding the alteration made in the time of holding the Term. The citation was served. The defendants did not appear; and a judgment final was rendered against them, by default.

We believe that no default could legally have been taken against them, as they had not had a day in Court. The citation was a nullity. It is true, that, if they had appeared in Court, and not excepted to the citation, it would have amounted to a waiver of the citation. 'Under the citation, issued and served, they were not required to appear; and the default against them was improperly allowed. The judgment must be reversed, and the cause remanded.

Reversed and remanded.