Townsend v. Ratcliff

50 Tex. 148

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Moore, Chief Justice.

The objection that the service of citation does not support the judgment against appellant, is not tenable. The citation commands the sheriff to summon J. A. Townsend. “ to answer the plaintiff’s petition.” The return of the officer is that the writ was “ executed * * * by delivery to J. A. Townsen, the within-named defendant, in person,” &c. While it may be true that the name Townsend, when distinctly and correctly enunciated, cannot be said to be idem sonans as that of Townsen, yet it is a matter of every-day knowledge that the name Townsend is often thus inaccurately written and spoken; and we think the court was not warranted in concluding, in this case, that the defect in the service of citation is not by reason of service upon a different person than the defendant named in the petition, but in merely a mistake of the sheriff in the correct spelling of the defendant’s name. This being the case, the objection to the judgment cannot be sustained. (Faver v. Robinson, 46 Tex., 204.)

The petition must no doubt contain an intelligible description of the land against which the vendor’s lien is sought to be enforced. There must bo a description of it, sufficient for its identification, in the judgment and order of sale. (Hurt v. Moore, 19 Tex., 269.) It is not apparent on the face of the transcript that this has not been done.

So, likewise, as appellant insists, where a judgment by default is rendered in a suit upon a promissory note and the damage is computed by the clerk, the note must be before the court. But the judgment in this case, in our opinion, raises no inference that the notes described in the petition were not in court when the clerk was ordered to compute the damage for which judgment was to be rendered.

The judgment is affirmed.

Affirmed.