Wise v. Southern Rock Island Plow Co.

Court of Appeals of Texas

Wise v. Southern Rock Island Plow Co.

85 S.W.2d 257, 1935 Tex. App. LEXIS 822

CourtCourt of Appeals of Texas

DecidedJune 17, 1935

DocketNo. 3923.

StatusPublished

Cited by1 cases

This text of 85 S.W.2d 257 (Wise v. Southern Rock Island Plow Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wise v. Southern Rock Island Plow Co., 85 S.W.2d 257, 1935 Tex. App. LEXIS 822 (Tex. Ct. App. 1935).

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Opinion

MARTIN, Justice.

On October 27,' 1931, defendant in error obtained a default judgment against plaintiffs in error in the district court of Castro county for the sum of $1,238.55.

Citation in error issued on April 20, 1932, and was served May 6, 1932. Writ of error bond was filed and approved April 18, 1932. Transcript was filed here on June 21, 1932.

An amicus curias brief has been filed, suggesting want of jurisdiction in this court for two reasons:

First, that the citation in error is defective in that its date of issuance is not noted thereon, as required by article 2260, R. S. Second, that the transcript was not filed with this court within sixty days from the filing and approval of the writ of error bond.

The facts appear to be against the first contention and the law against the second. There has been some confusion in the authorities with reference to the second question, but the Supreme Court has recently decided the question adversely to the contention noted above. See Tom R. Campbell v. First Nat. Bank of Lubbock et al. (Tex. Com. App.) 82 S.W.(2d) 954, opinion rendered May 22, 1935, not yet published [in State Report].

The original citation commands the defendants to appear before the October term, 1931, of the district court of Castro county, “then and there to answer the plaintiffs’ petition filed in a suit in said court on the-day of August, 1931.” The provision of article 2022, R. S. 1925, requiring citation to show the date when plaintiff’s petition was filed, is mandatory, and a citation containing either an omission of such date or its misstatement is fatally defective and will not support a default judgment. Conner v. W. C. Bowman Lbr. Co. (Tex. Civ. App.) 45 S.W. (2d) 237; National Ben Franklin Fire Ins. Co. v. Scott (Tex. Civ. App.) 214 S. W. 604.

Judgment reversed and cause remanded.

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MARTIN, Justice.

On October 27,' 1931, defendant in error obtained a default judgment against plaintiffs in error in the district court of Castro county for the sum of $1,238.55.

Citation in error issued on April 20, 1932, and was served May 6, 1932. Writ of error bond was filed and approved April 18, 1932. Transcript was filed here on June 21, 1932.

An amicus curias brief has been filed, suggesting want of jurisdiction in this court for two reasons:

First, that the citation in error is defective in that its date of issuance is not noted thereon, as required by article 2260, R. S. Second, that the transcript was not filed with this court within sixty days from the filing and approval of the writ of error bond.

The facts appear to be against the first contention and the law against the second. There has been some confusion in the authorities with reference to the second question, but the Supreme Court has recently decided the question adversely to the contention noted above. See Tom R. Campbell v. First Nat. Bank of Lubbock et al. (Tex. Com. App.) 82 S.W.(2d) 954, opinion rendered May 22, 1935, not yet published [in State Report].

The original citation commands the defendants to appear before the October term, 1931, of the district court of Castro county, “then and there to answer the plaintiffs’ petition filed in a suit in said court on the-day of August, 1931.” The provision of article 2022, R. S. 1925, requiring citation to show the date when plaintiff’s petition was filed, is mandatory, and a citation containing either an omission of such date or its misstatement is fatally defective and will not support a default judgment. Conner v. W. C. Bowman Lbr. Co. (Tex. Civ. App.) 45 S.W. (2d) 237; National Ben Franklin Fire Ins. Co. v. Scott (Tex. Civ. App.) 214 S. W. 604.

Judgment reversed and cause remanded.

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85 S.W.2d 257, 1935 Tex. App. LEXIS 822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wise-v-southern-rock-island-plow-co-texapp-1935.

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