Thomason v. Bishop
Texas Supreme Court
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.”
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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. The other facts are stated in the opinion.
1Opinion of the CourtRoberts, J.
The 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.
We 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…
2Cited by19 opinions
- Continental Insurance v. MillikenTexas Supreme Court · 1885
- Covington v. BurlesonTexas Supreme Court · 1866
- Sun Mutual Insurance v. Geo. Seeligson & Co.Texas Supreme Court · 1883
- Employer's Reinsurance Corp. v. BrockCourt of Appeals of Texas · 1934
- Taylor v. OpperMarCalifornia Supreme Court · 1889
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