Thomason v. Bishop , 24 Tex. 302 ( 1859 )

Roberts, 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 the 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 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.

It 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.)

We 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.

Reversed and remanded.