116 S.W. 118 | Tex. App. | 1909
This suit was instituted by Kirby Smith against Martin J. McLane, on December 13, 1906, to recover the sum of $375, alleged to be due them as commissions for effecting a sale, as real estate agents, of a certain parcel of land situated in the city of Dallas, known as lot No. 10, in block No. 848-2 and owned by said defendant McLane, to Edward Titche and Sam Dysterbach. At the time of the institution of the suit a writ of attachment was sued out and levied upon said lot as the property of the defendant. The defendant was a nonresident, and citation was issued and served by publication. He did not appear in person and a local attorney was appointed by the court to represent him. The original return of the officer levying the writ of attachment was as follows: "Came to hand December 13, 1906, and executed by levying on lot 10, block 848-2, in city and county of Dallas, State of Texas. Levied at 5 o'clock and 35 minutes." On January 28, 1908, this return was amended by the sheriff under an order of the court so as to show that the day on which the levy was made was "December 13, 1906." On the 29th day of May, 1907, the said Titche and Dysterbach intervened in the suit, claiming that they had bought the lot on which the attachment was levied, on December 14, 1906, for value and without notice of the plaintiff's claim or the levy of said attachment, and attacked the validity of the debt sued on. The cause was called for trial January 28, 1908, and the attorney appointed by the court to represent the defendant interposed a plea to the jurisdiction of the court, which was overruled and defendant excepted. A jury trial followed, which resulted in a judgment for plaintiffs, and the defendant brings the case to this court by writ of error.
The first assignment of error complains of the trial judge's action in overruling the defendant's plea to the jurisdiction of the court. The contention is, in effect, that the return of the officer who executed the writ of attachment as endorsed thereon, before amended, failed to state the time of the levy of said writ, and did not show even after amendment that the property was levied on as the property of the defendant; that the court erred in allowing the return to be amended, showing the date of the levy, and as originally made was insufficient to confer jurisdiction over the person of the defendant and authorize the judgment rendered. We are of the opinion there is no merit in this contention. In the first place, it would seem that the officer's return, as originally endorsed on the writ of attachment, was sufficient without the amendment permitted by the court, for that it was fairly susceptible of the construction, if not the only construction, that the writ came to hand on December 13, 1906, and was executed by levying the same on the land described in said return on the same day. But that it was within the discretion of the court, and a proper exercise of its discretion, to permit the return to be amended so as to show specifically the day on which it was levied, is well settled. (Messner v. Lewis,
Nor was the officer's return on the writ of attachment materially defective in that it failed to state that the property attached was levied on as the property of the defendant in attachment. The writ sued out in this case was an auxiliary attachment. It directed the officer to seize property belonging to the defendant, and the return showing a levy upon certain property described, "it must be intended that it was the property of the defendant." The case of Meuley v. Zeigler,
We are also of the opinion that the trial court did not err in overruling the defendant's motion in arrest of judgment based on the contention that the citation by publication was fatally defective in that it failed to state the file number of the suit. It seems that the citation contained all the requisites prescribed by article 1237 of the statute authorizing its issuance and service in such cases. However, we think the citation in question did sufficiently show the file number of the suit in which it was issued. It was not stated in the body of the citation, but was endorsed on it near the title of the case as appears on the face of the citation. This was sufficient. (Collins v. Hines,
The fourth assignment complains that the trial court erred in rendering judgment without requiring a statement of the evidence introduced on the trial to be made and filed during the term of the court at which the case was tried, or at least before the writ of *118
error was perfected. We think this assignment is well taken. Article 1346, Revised Statutes, 1895, provides, that "When service of process has been made by publication and no answer has been filed within the time prescribed by law, the court shall appoint an attorney to defend the suit, and judgment shall be rendered as in other cases; but in every such case a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as part of the record thereof." The requirement of this statute in the appointment of an attorney to defend the suit was complied with, but a statement of the evidence adduced on the trial was not approved by the judge and filed until after the expiration of the term of the court at which the trial was had, and not until the writ of error sued out had been perfected. The record discloses that the writ of error bond was filed and approved April 3, 1908, and thereafter, on April 18, 1908, a motion was made by the plaintiff in the trial court to have a statement of the evidence filed as of date January 28, 1908, which was granted. Upon the filing of the writ of error bond the County Court at Law lost its jurisdiction and was without authority to make the nunc pro tunc order directing the filing of the statement of the evidence in the case, and such statement and the filing thereof can not be considered as a compliance with the statute. (Texas State Fair Dallas Exposition v. Lyon, 5 Texas Civ. App. 382[
The judgment is reversed and the cause remanded.
Reversed and remanded.