Owen v. Tankersly

12 Tex. 38 | Tex. | 1854

Wheeler, J.

The defendant in error moves to dismiss the writ, because, after a return of not found as to the principal, the same citation was served on the attorney of record. The service, however, in this respect, appears to be in accordance with the requirement of the statute; which is that if the party is a non-resident, or, as in*this ease, “ cannot be found, the citation may be served on the attorney of record,” &c. (Dig. Art. 793.) Ho reason is perceived why an alias citation should be issued for that purpose, if service is made before the return Term. To require it would be to occasion needless delay and expense.

The defendant has further moved to dismiss because the citation misdescribes the judgment. It is true, that the citation does misdescribe the judgment; but it is accurately described in the petition which accompanied the citation. The defendant in error was thereby apprised of the judgment it was proposed to reverse. He cannot have been misled by the error in the citation ; for he, of course, knew that it was the duty of the clerk, in the citation to follow the petition, and, ■consequently that the misdescription was a clerical misprision. But if the defect were material, the objection might be obviated by amendment of the citation, making it conform to the petition. It, however, is not considered material. There can be no pretence, that the service did not answer the purpose of apprising the defendant of the judgment sought to be reversed, and enabling him to come prepared for trial; and that is all that should be required. (Hillebrant v. Brewer, 5 Tex. R. 566.) The motion is overruled.

Motion overruled.