Wyser v. Calhoun , 11 Tex. 323 ( 1854 )

Wheeler, J.

It is objected to the judgment, that the Clerk had no authority to direct publication in any particular paper, and that the judgment is erroneous by reason of the affidavit that the defendant was indebted to the plaintiffs simply, without adding to the use, &c.

We are of opinion that the objections to the judgment are not well taken. The Clerk appears to have issued the citation in conformity to the statute. (Dig. Art. 813.) But if he was not authorized (as is insisted) to designate, in the citation, a particular paper in which publication should be made, his having done so was mere surplusage. It did not invalidate the citation; which appears to have been duly and legally served.

The affidavit complained of, as affecting the legality of the judgment, was made to obtain an attachment, which appears to have been abandoned. Ho question, therefore, arises upon the sufficiency of the-affidavit. The only use which could have been made of it, by the defendant, was to have given it in evidence, to disprove the plaintiffs’ right to recover in the right in which they sued. But it was not given in evidence ; nor was the plaintiffs’ right so to recover, questioned in the Court below. That the defendant had evidence which he might have adduced, but did not, cannot now avail him as an objection to the legality of the judgment.

Judgment affirmed.