Covington v. Burleson
Covington v. Burleson
Opinion of the Court
—The plaintiffs in error were sued in the court below upon a note executed by them, and judgment was rendered against them by default. They were not hound to appear or to notice the proceedings had then against them until they were duly served with proper citations and copies of petition. (Thompson v. Bishop, 24 Tex., 302.)
The citation must state the time of the holding the court at which the defendants may be cited to appear. (O. & W. Dig., Art. 409; Paschal’s Dig., Art. 1431, Note 543.) The time stated in the citation in this cause (“the second Monday after the tenth Monday in March, A. D. 1861”) is an impossible date, and hence the time of holding the court was not stated, and for that the citation is defective. (11 Tex., 17.)
The plaintiffs in error were not compelled to appear in the District Court, and there urge this defect in the first instance. They can avail themselves of it here on writ of error. (2 Tex., 422.)
The petition contains the averment that the note sued upon was executed by W. B. Covington and his wife, S. C. Covington; there are no averments that the debt was contracted for any purpose that could fix a liability upon her, and it was error to render a judgment against her for the debt. She does not appear to be at all liable. (Trimble v. Miller, 24 Tex., 215.)
The judgment is reversed, and the cause
Remanded.
Reference
- Full Case Name
- W. B. and S. C. Covington v. John Burleson
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- 46 cases
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- Syllabus
- A citation must state the time of the holding of the court at which the defendant is summoned to appear. (Paschal’s Dig., Art. 1431, Note 543.) If a citation state an impossible time, as, for instance,the second Monday after the tenth Monday in March,” it is bad; and the defendant is not bound to appear in the District Court and there urge the defect in the citation. If judgment by default be taken against a defendant on a citation, which commands him to appear at a wrong or impossible time, he may avail himself of the defect on writ of error in the Supreme Court. It is the duty of the clerk to issue a citation for each defendant. (Paschal’s Dig., Art. 1441, Note 548.) When there are two defendants, each one must be served personally with a copy of the petition and of the citation, and this notwithstanding that the defendants are husband and wife. A return by the sheriff that he had delivered a copy of the petition and citation to both defendants, instead of to each, shows an imperfect service, and the defect is variable in the Supreme Court on writ of error to a judgment by default taken on such imperfect service. (Paschal’s Dig., Arts. 1433, 5121, Notes 545, 1122.) In a suit against a husband and wife on their joint and several note, it was error to render judgment by default against the wife, when the petition contained no averments showing that the debt was contracted for a purpose which could fix a liability upon the wife. (Paschal’s Dig., Art. 4643, Note 1052.) The plaintiff sued a husband and wife on their joint and several note, showing in his petition the conjugal relation existing between the defendants and setting out the note itself, which purported to be given for the purchase-money of a town lot. No averments were made in the petition, except general allegations of the execution, delivery, and non-payment of the note by the defendants, and of their alleged liability in consequence thereof: Held, that the petition disclosed no cause of action against the wife. (Trimble v. Miller, 24 Tex., 215, cited by the court; Paschal’s Dig., Art. 1508, Note 594.)