Wimbish v. Wofford

33 Tex. 109 | Tex. | 1870

Lindsay, J.

It is assigned as error in this case, that there was no legal service ©f process upon the defendants in the court below ; and that the judgment was entered up against- them by default. It appears the petition was duly filed, and the citations were issued by the deputy clerk, bearing test in his name alone, pretermitting the name of the principal clerk altogether. These citations were returned executed in due time by the sheriff; and the defendants not appearing at the calling of the cause, judgment was taken by default.

The statute, Article 1431, Paschal’s Digest, is very explicit that every writ or process ‘‘'shall be tested in the name of the clerk of the court from which it is issued.” This is indispensable to the validity of any writ or process from all courts of the State having a clerk. The article further prescribes they shall be signed by the clerk, as a further requisite to give them legal force. Article 436, Paschal’s Digest, provides that the deputy clerk “ shall have power to take depositions and to do and perform all other acts that may be lawfully done by the principal clerk.” This, however, does not dispense with the method prescribed by law for the testing of writs and process. That method is, it shall hear test in the name of the clerk and be signed by him. If the principal clerk does the act, it must be so done. A deputy only has authority to do what the principal may do, and is not warranted in doing the act in any other way than as it might be done by the principal. He had authority to sign the name of the principal, verifying it as the act of the deputy, by superadding his own name. By reason of this defect in the citations, the court had not legally acquired jurisdiction over the persons of the defendants, and the judgment in law was a nullity. The action of the court is therefore reversed, and the cause remanded for further proceedings. .

.Reversed and remanded.