*1 204 body showing met in the
suance was the citation of the date on which disagree. it. signed clerk and sealed We Appeals have cor Our Courts Civil rectly is not issued declared that a citation of forth from the clerk’s until “it is sent authority and fice under his sanction and else officer, to some one given to an officer, give to an for Knowles, Tex. being served.” See Snell 871, (1935), writ Civ.App., Alexander, dism.; Ferguson v. Estes & 465, (1919), Tex.Civ.App., 214 S.W. thus The date of issuance no writ. sign date of entirely different from the However, mere failure ing sealing. not render of issuance does to note the date ineffec invalid, thereof service a citation Holt, Gilmer, Lowell for C. pursuant there judgment tive or a rendered by Rule 118 clear This is made Matthews, Pace, to void. Payne, Sands Ben- & citations. amendment of provides ners, Dallas, respondents. showing The in the record citation PER CURIAM. date of delivery the sheriff and date of clearly demonstrates on service opinion The Appeals of the Court of Civil the date the clerk to note that failure of is found in 400 S.W.2d That 862. Court result in did not the citation issuance on affirmed a trial court judgment, default of error petitioner. Writ prejudice to in the doing course of so overruled two refused, error. no reversible points Only rulings error. one of the brought here for review. The default was rendered in respondents, plaintiffs
favor of in the trial
court, against petitioner, defendant point court. The pe- of error which
titioner erroneously asserts was overruled Appeals the Court of Civil as follows: parte Frank HANLON. Ex “The error rendering trial court in No. A-11353. a default judgment against Appellant be- upon Supreme appellant the citation served was of Texas. Court insufficient in date of issuance of June citation shown thereon.” Rules Civil 101, Texas
Rule “state a citation
Procedure, requires its petition, filing
the date of case, and style of
file number citation,” and issuance date clerk.” sealed signed “be held that Appeals Civil is- showing date of requirement
Brown, Barber, Sparks Erwin, & G.Will Austin, Austin, Eisenberg, Davis &
respondent.
NORVELL, Justice. application filed an
Frank Hanlon corpus of habeas in this Court contend- writ issued an order of commitment ing that County Travis was the District Court of Court was invalid because the District authority without to issue the order charged violating. he We was hearing. and set down the case for writ 1965, 10, appears It that on December petition perpetuate filed a testimony. Rule Texas Rules of Civil Texas, anticipated Company of alleged He Insurance the insurance Procedure. carrier for T. E. instituting an action him; figuring whose true name driver of one of the automobiles was unknown collision, anticipated Highway an auto- and it was action concerned through mobile occurred on S. of such collision collision which U. Manor, Texas, ap- and location Highway 290 ascertained near *3 (Jane of of the driver of the third proximately p. evening 7:00 m. on the Doe) 24, 1965; May he to be- vehicle the scene of accident. that had reason says he this lieve of an Hanlon that communicated Doe was the driver Jane although Millers and may been the information to Mutual automobile which have he proximate not now remember the name of such and does of collision Doe, he, injuries he has a written thereof resulting Byrd, sustained record which Jane his name, present investigation and that the exact and Relator asserts address file. contempt and Judge’s of Doe to the District of whereabouts were unknown order Jane him, in the investigation. commitment after is void because even exhaustive Byrd proviso 186a wished to teeth of a contained further averred he perpetuate subject and habeas testimony Frank Hanlon therefore to attack of corpus. provides that: (the Hanlon The rule here) relator and that said “concerning would be the exact examined testimony of “Any party may take the name, address, present and whereabouts by deposi- person, including a discovery of leading other to the matters upon or tion oral examination written name, present the exact address and where- dis- interrogatories purpose of for the abouts Doe, of which information Jane ac- covery in the or for use as evidence necessary (Byrd) prepare and * * * purposes. or for both tion prosecute against Doe”. To his claim Provided, however, herein rights that the end, Byrd this requested the court enter production require granted shall not the oral authorizing order him to take or of of witnesses written statements deposition Byrd of Frank Hanlon. be- passing extend communications subpoena requested the of a issuance representatives or the agents tween or directing duces tecum Hanlon to Frank suit, or employees to the of either bring papers with him records as such and any party and communications between furnishing will him in be needed or their em- agents, representatives, his sought information as ployees, subsequent to the made deposition The Court directed that upon occurrence or transaction specifically taken and thereafter ordered based, in connec- the suit is made questions respect Hanlon “to answer with investigation, prosecution, tion with the name, present to the exact address claim, defense or circum- or of such * * of whereabouts Doe arisen; out stance of which same Upon counsel, Hanlon re- advice of further, provided rights here- answer, fused whereupon to make not disclosure require shall contempt found him in and ordered obtained in the course County Sheriff of him into Travis to take aby a claim or defense custody liberty and “restrain him person investiga- employed to make until further or of the court until orders tion.” be discharged according to law.” thereform position may It is Hanlon’s validity In support of the questions be forced to ex- order, answer asserts number of conten name, act address, essence, and exact whereabouts pro He urges tions. that in manager Doe because he ceeding equitable which he is an instituted and investigator for Millers Mutual Fire discovery Obviously, bill of under Rule 737. discovery purposes questions respect one of the to the exact of the answer deposition taken, pro- name, address, sought whereabouts Doe”, ceedings squarely provi- exercising come within the him; lawfully that the relating taking sions of Rule 187 vested in to the depositions perpetuate testimony. scope supporting In motion the order and its that, extremely paragraph provided nar- (referred order) 4 of Rule it is to in the deposition only purpose “The rules the ascer- not inconsistent with row and has for its apply name, this taking, signing, rule shall taining address and returning, objections person to, and use of such allegedly whereabouts of Jane depositions.” quite think it clear that We have a cause whom has or ap- action; set forth in Rule 186a have plication depositions protect taken under Rule contained in Rule 186a is to product litigant work
litigant; the enforcement *4 provisos operate to argues the Rule must to some extent that provisos truth; 186a application the shut in unusual have no out the and that the present by present situation because T. factual situation disclosed the E. record, whose by policy automobile insurance is considera- carried examination of Millers Company pointed Mutual Fire tions is called It out that Insurance is for. is not a proceedings. identity proposed to the first when defendant the proviso parties e., injury mentions to a communica have done serious —i. tions agents issue, policy representatives prospective plaintiff between is or of parties, and parties product preserving communications between consideration of a work and their agents representatives. important is little while an and vital How served ever, proviso (which policy vindicating justice jeopardized. second of we have italicized) connection, parties does not In this that after mention is stated obviously was thorough investigation, Byrd intended to and his at- extend scope exception of beyond torneys that set have been unable to ascertain know, forth in the proviso. simply identity they first It Doe as far as provides only rights person “herein Hanlon who does know is the (to take a deposition) require identity. her shall not disclosure of information in obtained recognize Byrd’s While we the force of course of an investigation of a claim or argument, there much to be said for by person defense employed make enforcement rules in ac of statutes and such investigation”. clearly language This wording. Admit cordance with their literal applies to Hanlon employed who was tedly, present are the facts of the case make an investigation of It the collision. highly unusual and unable to we have been may be further said that the adopt effect of any persuasive find controlling or author ing this construction would be to effective ity provisos relating to the situation. The ly destroy provisos It Rule 186a. peculiar in Rule be to the 186a seem to only would necessary be proceed under practice. Ladon, Ex Cf. Parte Rule 187 only person where the who could relating to 121 (1959) Tex. 325 S.W.2d be properly designated “party” as a giving Rule 167. It could well be that the be the one petitioning commission to Hanlon deposition requested take a information perpetuate testimony. justice a matter of abstract should not as by operation provisions be of the earnestly further frustrated contends per 186a, wording by situation of Rule disclosed provisions no room record tinent leaves little or exception constitutes an to the provisos a trial Rule 186a. It the exercise of is said that in Dalby, issuing Shirley (Tex. the order directing Hanlon “to lawyer re would bind himself to release Len- Civ.App.1964, e.), n. and the fact ref. r. withholding der. can Doe’s real wording mains that How contends, identity aid Lender ? Moses unambiguous the exact situation and covers so, correctly that the situation disclosed appears we since it have before us excep- record constitutes an as to Hanlon obtained information take the name, tion to of Rule 186a. I and whereabouts address position Byrd proceeded good that Moses investigation of a Doe in the of an course per- faith when he the Court to moved relating the automobile defense deposition Hanlon. mitted to take the collision. adjudged The trial court relator, Hanlon, It is ordered contempt. Court must assume This discharged. support judge’s the trial order deposition found that the motion to take the of Hanlon filed in faith and DISSENTING OPINION miscarriage prevent possible in order to SMITH, justice make it was that Hanlon essential Justice. prospective de- known the respectfully agree I cannot dissent. fendant, princi- The doctrine or Doe. theory any with relator’s important ple upon Byrd highly relied course of an during which is obtained administering justice. In scheme and im- privileged forever Moore, 401 the recent case of Lehnhard v. According discovery. mune from *5 con- (Tex.Sup.1966), 232 this Court S.W.2d theory, actions regardless of what relator’s in sidered facts a policy the of disclosure of against Moses takes pre- somewhat different context from be able to ascertain the real name never quoted approval sented here and the Doe. The counsel for on following Wigmore’s from Dean work represent attorneys Lender. One the Evidence, viz: for a to the trial Hanlon made statement to be a judge that Lender is not Mr. “[i]f man be the enforce- is to denied “[N]o a willing and if to furnish counsel rights merely ment of his because another can release as to Mr. Lender I think we possesses the the facts without which controversy pretty promptly.” finish our right and enforced.” cannot be ascertained Counsel for addressed Moses Wigmore, (3rd Ed.) 8 § “ * * * Court, reply, in without case Admittedly, facts of knowing all I can not state of the facts been unable unusual, I have highly are present a either that not we will or we will author- persuasive controlling or find to trying I against Mr. Lender. am The ity situation. relating to the happened find there and once out what out peculiar be seem in Rule 186a .to I happened find out what then a decision Ladon, 160 Ex Parte practice. Cf. be or will will made as to whether we will relating to (1959) Tex. proceed separate against Mr. not a suit Ordinarily, Lender. I do know on the basis of what of a the exercise no 186a leave room very I have that we well Shirley v. judge. of a trial discretion Doe, if a cause of against have action (Tex.Civ.App.1964, Dalby, 384 S.W.2d is, just we can out Doe who Jane find However, should e.). Court this ref. n. r. doing that is I all that am interested their having provisos, that such hold here." of a work protection obvious protect a intended to Thus, product, never we have what I consider an admis- were prospec- released, the name giving that if can then the from sion Lender witness judge finds defendant, trial forthcoming a real name tive Doe will be after a plaintiff circumstances, prospective Under no conscientious rights. See Lehnhard to as- to enforce investigation been unable faith Moore, supra. If are of our Court defend- rules certain the name of a construed, here, our strictly then to be so the witness except knows of no one ant and The adversary system long cannot survive. possessed information. case this Court in the holding of where one It is clear that this is not a case encourages suppression fosters and attempting results of usurp injured person, truth an Moses and denies Byrd is Moses another. legal opportunity pursue his attempting not names of to obtain the rights in of law. If this is to be a court party’s a case in another witnesses. It is result, modify then Court should trial court that under has found case by very rule decision in Court this here, presented the unusual circumstances approval rather than to await the in- limited entitled to the chang- advisory formally committee before formation which he seeks. ing by the the rule Court. prompt change action to rule Unless
The trial jurisdiction court had is entirely possible taken it that Moses subject matter. entered is Byrd’s Doe action strictly void. This Court has con- will be barred limitation. avoid To strued the holding rule to the extent permit justice prevail, confusion and to pertinent provisions “little or no leave this should construe the statute room’’ exercise of mean protect that it was never intended to “wording giving prospec- witness from the name of a provisos is unambiguous and covers ”* * * tive If defendant. this fol- course were exact situation we have before us. lowed, change then there need no agree unfair, cannot unjust with this accept rule. the Court Since has declined to untenable construction of the rule. my view, seriously it should im- consider Furthermore, the trial mediately court’s order changing the rule reach the entered virtue power ancillary expressed. result herein *6 the exercise of the duties aof court of I remand Hanlon, would the relator, equity as a means for the attainment of custody County, Sheriff of Travis justice. The trial court’s is not Texas. only authorized by 186a, is also authorized latter rule This DISSENTING OPINION contains no provisions except restrictive discretion of the trial court “in accordance STEAKLEY, Justice. usages with the equity.” of courts uphold I would the order of the district Hastings Company, See Oil Co. court. not construe Rule 186a 149 Tex. (1950). S.W.2d 389 identity of a prohibiting discovery of the equitable prospective The relator has advanced no defendant known to witness justification reason or has found that withholding for the plaintiff Moses injured from has been unable which, known, true name of if ascertain the after opportunity investigation. would afford faith