Burke v. Thomson , 29 Tex. 158 ( 1867 )

Moore, C. J.

If we were to regard merely the literal import of the language used by Mr. Justice Roberts, in the first part of the opinion delivered in the case of Thomson v. Bishop, (24 Tex., 302,) when formerly before this court, it would lead to the conclusion that the judgment in this case is erroneous. “The question,” he says, “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, 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.”

But it is to be observed, that the point before the court was, whether the apparent defect in the judgment might be obviated by an amendment after the term at which the judgment was rendered, and thus, in effect, as is said, deprive the defendant of the opportunity of making a defense. The court was not called upon to determine the character of proceeding which must be resorted to in order to correct such defective return. We need not, therefore, conclude, from the general language which we have quoted from the opinion, that the court intended to hold that the objection to a judgment by default on a defective return could only be obviated after the adjournment of the term at which it was entered, by a bill of review, and that it intended, in effect, to repeal so much of the statute as authorized “ any mistake or informality in a return” to be cured “at any time, under the direction of the court.” The relief could undeniably be had by bill of review, independently of the statute, and if it can be had in that manner alone, the intention of the legislature to give the simple and speedy remedy by an amendment of the mistake or informality of the return, has failed to accomplish the full purpose for which the law was enacted.

It is, however, not to be supposed that the court entertained this view of the matter, for, in respect to this authority given to thé officer to amend his return “ at any time,” it is said: “ It is true the statute says that any mistake or informality in a return maybe corrected 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 any substantial right of pleading any matter of defense, after it was made to appear to the court by the amendment of the return that the process had been served.” (3 Black. Com., 410.) At least we think this is quite as liberal a construction of the statute as can be justly asked for the protection of defendants who have been, in fact, duly served with process, but who have watched and detected the informality of the return, and therefore declined answering during the term at which they were cited to appear. The opportunity of a defendant who rests upon the defect in the return to plead might, it seems, be as effectually cut off by an amendment during the term after default day, as if made at a subsequent term. And especially is this so when, in the one instance, it may be done without, while in the other it is after full notice to himself or attorney of record, and when the judgment by default has been set aside, and an opportunity has been afforded him of pleading any matter of defense which he might have originally set up. We cannot agree that a party who has been duly and legally served, but having watched for and ascertained the defect in the return, fails to answer at the term to which he has been duly notified, choosing to rely simply upon the mistake of the officer, has any claims upon the indulgence of the court, or can complain if he should not receive notice of an application to correct such judgment for the same length of time before the beginning of the term as is required for an original suit.

The proceedings had in the district court to correct the original judgment are, in our opinion, in substantial conformity with the spirit and intention of the decision of this court in the case of Thomson v. Bishop, (24 Tex., 302,) and the judgment is therefore

Affirmed.