177 S.W.2d 301 | Tex. App. | 1943
This is an appeal from an order of the District Court of Uvalde County, 38th Judicial District, overruling a motion for a new trial filed by appellants on February 12, 1943, and refusing to set aside a judgment rendered against appellants by that court on November 6, 1942. The judgment was based on an action in trespass to try title to 4503.15 acres of land located in Uvalde County, in which appellee was plaintiff and appellants were defendants. Citation by publication was issued for all defendants on affidavit of plaintiff's attorney. The affidavit referred to plaintiff's petition and followed it as a part of the last page thereof, and was made before a notary public on August 4, 1942. The petition was filed on August 5, 1942.
The sole point presented by this appeal is that the affidavit did not authorize the clerk to issue citation by publication because it was not made when the suit was instituted or at any time during its progress, as required by Rule 109, Texas Rules of Civil Procedure, but was made prior to the institution of the suit, and that therefore the judgment rendered against defendants, who did not answer except by an attorney appointed by the court, was void.
Plaintiff alleged "that the residences and place and places of residence of the several defendants * * *, and each and all of them, are unknown to plaintiff and to her attorneys," and this allegation was verified by the affidavit. It was stipulated that these alleged facts were true at the time the affidavit was made and at the time the suit was filed and citation issued. There is no contention that the facts alleged did not authorize the issuance of citation by publication under Rule 109, R.C.P.
In Kitchen v. Crawford,
This language is not to be construed as authorizing the issuance of citation by publication where no affidavit is made, although facts exist which could be verified by affidavit. The making of the affidavit is essential to the validity of the issuance of such citation. We think it clear, however, that in view of the objective of the Rules of Civil Procedure, promulgated and adopted by the Supreme Court, as set out in Rule 1, that Rule 109 should not be given the limited and narrow construction for which appellants contend. Here the jurat of the notary was dated one day before the petition, in which it was included, was filed. The ground of issuance of the citation was that the residence or residences of the several defendants were unknown to plaintiff and to her attorneys. This factual basis for issuance of citation is not of a nature so inherently changeable as to lead to the supposition that it had ceased to exist within the brief space of time which elapsed between the making of the affidavit and the filing of the petition in this case. While it is true that under statutory provisions authorizing the issuance of writs of attachment, the validity of the writ does not depend upon the truthfulness of the allegations made in the affidavit, but upon compliance with the statute in making the affidavit (Gimbel *303
Son v. Gomprecht Co.,
This rule was followed in Wright v. Ragland,
The rule so enunciated and followed has been applied generally in cases dealing with writs of attachment (7 C.J.S., Attachment, p. 309, § 137), and we think it applicable here, and that since the time intervening between the making and filing of the affidavit does not authorize the inference that the facts stated in the affidavit as ground for issuance of citation by publication had ceased to exist when the petition and affidavit were filed, or cast suspicion on the verity of the affidavit, the issuance of the citation was authorized.
The judgment is affirmed.
This opinion directed to be written and is adopted by the Court.