Covington v. Burleson

28 Tex. 368 | Tex. | 1866

Smith, J.

—The plaintiffs in error were sued in the court below upon a note executed by them, and judgment was rendered against them by default. They were not hound to appear or to notice the proceedings had then against them until they were duly served with proper citations and copies of petition. (Thompson v. Bishop, 24 Tex., 302.)

The citation must state the time of the holding the court at which the defendants may be cited to appear. (O. & W. Dig., Art. 409; Paschal’s Dig., Art. 1431, Note 543.) The time stated in the citation in this cause (“the second Monday after the tenth Monday in March, A. D. 1861”) is an impossible date, and hence the time of holding the court was not stated, and for that the citation is defective. (11 Tex., 17.)

The plaintiffs in error were not compelled to appear in the District Court, and there urge this defect in the first instance. They can avail themselves of it here on writ of error. (2 Tex., 422.)

Each defendant must he served personally with a copy of the petition and of the citation. It is made the duty of the clerk to issue copies to each. (O. & W. Dig., Art. 408; Paschal’s Dig., Art. 1430, Note 542.) And the sheriff must deliver to each defendant a copy of petition and the citation, (16 Tex., 554,) and in making his return he should “ state the time and manner of service.” (O. & W. Dig., Art. 412; Paschal’s Dig., Art. 5121.) The return in this case is, that he delivered a copy of petition and citation to them both. This is an imperfect service.

The petition contains the averment that the note sued upon was executed by W. B. Covington and his wife, S. C. Covington; there are no averments that the debt was contracted for any purpose that could fix a liability upon her, and it was error to render a judgment against her for the debt. She does not appear to be at all liable. (Trimble v. Miller, 24 Tex., 215.)

The judgment is reversed, and the cause

Remanded.