Owsley v. Paris Exchange Bank , 1 Posey 93 ( 1880 )

A. S. Walker, J.

Touching the matters relating to the merits, we only remark that the petition does not disclose that Ann Jane Owsley was a married woman, nor does the judgment so declare. There is no statement of facts. Such objection cannot be taken on appeal when not taken or apparent on the record below. Caldwell v. Brown, 43 Tex., 216.

The second assignment we do not deem material. The service of the two copies would have been useless.

The sufficiency of the citation raised by thé first assignment is the only question of importance in the record. The citation commanded the officer to summon J. H. Owsley to be and personally appear . . . “to answer the petition of J. E. Roberts, cashier Paris Exchange Bank, against him in his own proper person, "and as executor of Ann Jane Owsley and others, for debt, certified copy of which petition is herewith sent, which you will also deliver to defendant.” In other respects the citation was formal.

The statute (Pas. Dig., 1431) prescribes that the citation in the district court “ shall also state the names of the parties to the suit.”

In Burleson v. Henderson, 4 Tex., 52, a citation Jo one defendant, omitting two other defendants, held defective on appeal; the opinion of the court stating, “ it is sufficient to say that the statute requires the parties to be named in the writ; and this provision being disregarded, the citation cannot be sustained.”

In Crain v. Griffis, 14 Tex., 358, citation was issued ancj served on Sampson Christie, a defendant. The citation named the defendants “ Joel B. Crain, George H. Barney and Sampson.” Held, that objection for misdescription, etc., does not go to the validity of the process, and must have been taken by plea or exception, and cannot be assigned as error on appeal from judgment by default.

In Dikesv. Monroe, 15 Tex., 236, held, that a citation describing the plaintiffs as “ Monroe and brother,” in an action by II. W. Monroe and John Monroe, was not so defective as to require judgment by default to be reversed; the court holding that the copy of petition served at the same time would have given particular information of the nature of the cause of action; and that “ the petition in our system of procedure is the leading process.”

In Andrews v. Ennis, 16 Tex., 46, held, “the statement of the firm name ” (of plaintiffs in the citation) “is deemed a sufficient compliance with the statute. The petition, a copy of which accompanied the writ, fully discloséd the names of the plaintiffs.”

In Kirk v. Murphy, 16 Tex., 655, the opinion of the court says: “If the names of the plaintiffs were truly stated in the copy of the petition, that would sufficiently apprise the defendants who the plaintiffs really were, though there was a mistake in the Christian name of one of them in the copy of the citation.” This was on a motion to quash the citation for variance between the citation and petition in the names of the plaintiffs.

In Norvell v. Garthwaite, 25 Tex., 584, judgment reversed for defective citations — not naming the parties; citations were directed to each of several defendants, who appear alone to have been named as defendants.

In Battle v. Eddy, 31 Tex., 368, judgment reversed for defective citation in naming but one of two defendants.

In Guimond v. Nast, 44 Tex., 114, a citation naming the defendants as “ J. W. Guimond & Co.,” served on Guimond, held sufficient on his appeal to support a judgment by default against him individually," and against the firm assets, the court saying: “This is a sufficient description of the names of the parties to the suit as required by the statute, because we must presume that the accompanying copy of the petition corresponded with the petition on file, which did state more fully the names of the parties, by which the defendant served, was fully informed on that subject.” This appears to have been decided under the statute regulating suits against partnerships. Pas. Dig., 1514.

[Opinion delivered April 26, 1880.]

In Heath v. Fraley, 50 Tex., 209, in suit by John W. Fraley and his wife Mary Emma Fraley, plaintiffs, against Heath, the plaintiffs were named in the citation as “ John W. Fraley and wife.” On appeal from-judgment by default, held: The citation, however, upon which the judgment is based fails to state the names of the plaintiffs, to whose action appellant was required to answer, as is, in plain and direct terms, required by tfye statute.” Citing 4 Tex., 52; 8 Tex., 108; 16 Tex., 46; 25 Tex., 583.

From this digest of the cases, and taking the first and the last utterance of the supreme court, that the statute means what it says, and that the meaning is clear, we conclude that the citation in this record will not support the judgment by default. It does not state the names of the parties to the suit. For this error the case should be reversed.

Reversed and remanded.