Public-domain · open source
OpenJurist

24 Tex. 302

Thomason v. Bishop

Texas Supreme Court

Decided July 1, 1859

Texas Supreme Court · decided 1859-07-01

Error from Washington. Tried below before the Hon. Robert E. B. Baylor. This was a suit by the defendant in error against the plaintiff in error, on a promissory note. The sheriff’s return upon the citation to the defendant, was as follows, to wit: “ Executed March 9th, 1858, by serving the defendant with a true copy of this writ, and a certified copy of plaintiff’s petition.” There was a judgment by default, in favor of the plaintiff, for $671.65.

Key passage — most relied on by later courts

“Any mistake or informality in a return may be corrected by the officer at any time under the direction of the court.”

quoted by 1 later decision, including Employer's Reinsurance Corp. v. Brock

Good law ✅— No negative treatment on recordhow we know

Decided 1859-07-01

How this case has been cited

Cited by 8 later decisions — most recently January 1953

8 state decisions

3018591860187018801890190019101920193019401950decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Roberts, J.

¶1The question in this case is, whether or not, after the term of the court, at which a judgment is rendered, the sheriff can amend a defective return of service of the citation, on which a judgment by default has been taken, upon a mere motion made by the plaintiff below, with notice thereof served upon *303the attorney of the defendant below, who had filed a petition for a writ of error.

¶2We think such amendment does not cure the defect of the judgment. The plaintiff below, should have filed his petition, setting forth the facts, and asked the court to set aside the judgment thus erroneously entered in his favor, and have served the defendant with process, as in an original suit. The defendant below, being then in court, and the judgment having been set aside, could have had full opportunity to plead, either in abatement, or in bar, any defence which he may have had to the action. (Richardson v. Ellett, 10 Texas Rep. 191.) Until the return of the sheriff upon the citation, showed that the defendant below had been properly cited, he was not bound to appear for any purpose. If the amendment be allowed after the term, as in this case, the defendant is cut off from his right of pleading that he has, in fact, not been properly cited, or any other defence.

¶3It is true, the statute says that “ any mistake or informality in a return, may be corrected by the officer, at any time, under the direction, of the court.” (O. & W. Dig. 115.) This may grant the power to permit an amendment of the return, after the term, at which the judgment was rendered, as well as before. Still the power should be exercised in such manner, as not to deprive the defendant below, of the substantial right of pleading any matter of defence, after it was made to appear to the court, by the amendment of the return, that the process had been served. (3 Bl. Com. 410.)

¶4We think, therefore, that this case-must be regarded, as if there had been no amendment of the return, by the sheriff. The return is bad, under the decisions of this court repeatedly made, and for that reason the judgment will be reversed and the cause remanded.

¶5Reversed and remanded.

/24/tex/302 · .json · Public domain