Olsen v. King

SMITH, J. This writ of error is prosecuted from a judgment by default. The Only question presented is' that of the sufficiency of the citation, issued and served upon defendant below, to support a judgment by 'default. The citation was regular and sufficient in every respect, unless it was defective because it did not .meet the requirement in article 2180, R. S. 1911, that “the date of its issuance shall be noted on the” citation. The process here shows upon its face to have been executed by the clerk, and was dated on August 26, 1924, and the officer’s return, indorsed upon the outside of the paper, shows that it came to the hand of the sheriff on the next day, August 27, 1924, and it was returned and filed among the papers in the cause on September 5, 1924. There was no formal, explicit recitation in the body of the citation, or indorsement upon the outside of it, that the process was issued upon a particular date. But at the left of the date of the instrument, opposite the signature of the clerk, the printed words, “Issued same day,” appeared within parentheses. It is true, as plaintiff in error contends, that the provisions of the statutes, prescribing the requisites of citation and other process, are mandatory, and, we may add, they must be substantially complied with. Pruitt v. State, 92 Tex. 434, 49 S. W. 366. But we think the requirement that the date of its issuance shall be noted upon the citation was substantially complied with in this case. The process was itself dated to the extent of showing the day it was executed by the clerk. Opposite and adjoining this date was the printed notation, “(Issued same day).” The officer’s return, indorsed upon the outside of the paper, showed it came to that officer’s hands the day after its date, and was executed three days later, and the clerk’s file mark thereon showed it was returned and filed with the clerk five days later. We think as a matter of strict regularity the date of issuance should be more specifically shown directly over the clerk’s signature, thus giving it more complete verity. Yet under the facts presented we hold the statute was at least substantially complied with. The judgment is affirmed.