Wood v. Warren

157 S.W. 301, 1913 Tex. App. LEXIS 1146

• Court: Court of Appeals of Texas
• Decided: May 3, 1913
• Status: Published

Opinion

SPEER, J.

E. Moseley filed suit in the district court of Haskell county complaining of Mayes, Leslie, Helton, Beasly, Grisham, Stanfield, Walker, Allen, and R. W. Warren; the action being as to all of the defendants, except Warren, one of trespass to try title and essentially a boundary suit, and as to Warren one to recover upon his warranty as a vendor of the land in the event the other defendants had Judgment against plaintiff. Warren vouched in his grantor, John A. Wood., seeking Judgment against him in the event plaintiff recovered upon his (Warren’s) warranty. On the trial judgment was entered for the plaintiff against the defendant Warren for the sum of $304 for 34 acres of land lost in the action and the sum of $24.73 and interest for delinquent taxes paid upon the land, There was also a similar judgment by default in favor of Warren against Wood, who alone prosecutes this writ of error.

[1] The principal contention on this appeal is that the citation issued to plaintiff in error was insufficient in law to support a default judgment, inasmuch as it did not contain the date of the filing of plaintiff’s original petition. The precise error appears to be that the citation recited that plaintiff’s original petition was filed October 27, 1912, and since Wood was served with the writ on April 17, 1912, the date given was an impossible one, and therefore tantamount to no date at all. The original citation contained in the transcript, however, shows, the date of the filing of plaintiff’s original petition correctly, which was October 27, 1911. If, however, the point sought to be raised by plaintiff in error is that the copy served upon him contained the error above noted, and if in any event such an error may be reached by a writ of error without in any manner raising the question of fact of variance between the copy and the original writ in the trial court, nevertheless we overrule the assignment for this: Plaintiff in error resided and was served in Ilill county. The copy of the writ of citation delivered to him was accompanied with “certified copy of plaintiff’s original petition and defendant R. W. Warren’s original answer and cross-bill against defendant J. A. Wood,” which certified copies disclosed the true date of their filing. This supplied the omission in (he citation and was sufficient to support the default judgment.

[2] The judgment in favor of R. W. Warren against plaintiff in error for. $24.73 for delinquent taxes must be reversed, however, since Warren’s plea over against plaintiff in error in no manner sought to recover such item. The judgment of the district court is therefore reformed so as to eliminate the recovery of $24.73 and interest thereon, and as thus reformed the same will be affirmed.

Reformed and affirmed at defendant in error’s costs.