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Rule 101. Requisites (Dec1941)

TEXT

The citation shall be styled "The State of Texas" and shall be directed to the defendant and shall command him to appear and answer the plaintiff's petition at or before 10 o'clock a. m. of the Monday next after the expiration of 20 days from the date of service thereof, stating the place, of holding the court. It shall state the date of the filing of the petition its file number and the style of the case, and the date of issuance of the citation, be signed and sealed by the clerk, and shall be accompanied by a copy of plaintiff's petition. The citation shall further direct that if it is not served within 90 days after date of its issuance, it shall be returned unserved. The party filing any pleading upon which citation is to be had shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served, and when the copies are so furnished the clerk shall make no charge therefor.

Amended by order of Sept. 20, 1941, eff. Dec. 31, 1941: By adding the last sentence..

ADVISORY OPINIONS

Question: Where a copy or copies of the petition are furnished under amended Rule 101 prescribing .the requisites of the citation, is the district clerk entitled to the fee, for comparing copy with original, prescribed by Revised Statutes of 1925, Article 3928, as amended by Acts 1941, 47th Legislature S. B. No. 269?

Answer: Yes, the amended article implies that the comparison is to be made and the fee charged and it prevails over the rule.

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

Question: Rule 101 reads that the citation shall command the defendant to answer on "the Monday next after the expiration of twenty days from the date of service thereof." If the twentieth day falls upon Sunday, will defendant be required to answer on the Monday immediately following or will he be justified in awaiting the second Monday in view of Rule 4 which reads that, in computing "any period of time" prescribed or allowed by the rules "the last day of the period" is to be "included unless it is a Sunday or legal holiday, in which event the period runs until the end of the next day which is neither a Sunday nor a holiday”?

Answer: Defendant will be required to answer on the Monday immediately following the expiration of the twenty days because the time between service and answer is a traditional period in Texas procedure and seems to be the principal interval which Rule 101 has in view. In reason the last day of the intermediate twenty-day period is not within the purview of Rule 4 for the above reason and for the further reason that nothing has to be done on that day that requires the presence or aid of an official who would normally be unavailable on a Sunday or legal holiday.

5 Tex. B.J. 15 (1942) reprinted in 8 Tex. B.J. 6 (1945).

Question: In tax suits should citations be returnable and the defendant be cited to answer on the first Monday after the expiration of twenty days from service as required in Rule 101, or should the citations be returnable to the next regular term of court?

Answer: By virtue of the last sentence in Rule 2, Articles 7328.1 and 7345b, Section 3 (d), specifically stating the requisites of citations in tax suits, are continued in effect; and the citations issued in such cases should be returnable to the next term of court and otherwise conform to the provisions of the aforesaid statutes.

No opinion is given upon whether, in such a suit, a citation returnable according to Rule 101 would also be valid.

5 Tex. B.J. 53 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Question: Is the twenty days mentioned in Rule 101 twenty days from and including the date or service of citation, or is the date of service not counted and the time construed to mean on the first Monday after the expiration of twenty full days exclusive of the day of service? Concretely, where citation was served on January 6, would a default judgment on Monday, January 26, be proper?

Answer: Under the provisions of Rule 101 twenty full days must elapse between the date citation is served and the Monday upon which the defendant is required to answer. The date of service is not to be counted in computing the twenty days.

Where citation is served on January 6 the defendant would not be required to answer on Monday, January 26, because there are not twenty full days between January 6 and January 26. Accordingly a default judgment could not be taken against the defendant on Monday, January 26, when he was served on January 6.

5 Tex.B.J. 95 (1942) reprinted in 8 Tex. B.J. 7 (1945).

Question: Notwithstanding Rule 101 requiring answer at or before ten o'clock a. m. of the Monday next after the expiration of twenty days from the date of service, may a defendant, in case such time of answering falls in vacation, postpone his answer until the following term, without risk of default judgment by reason of such late filing, provided the answer is filed promptly at the opening of the term?

Answer: We think so. Under Rule 239 judgment by default can only be entered in term time. Under Rule 237 appearance day as to a defendant who is required to answer on a day in vacation is the first day of the next term. Under Rule 238 the docket is called for default on such appearance day, at ten o'clock a. m., or as soon thereafter as may be practicable, and under the cited rules default judgment can only be taken where there is no answer on file at the time of the call of such docket, whether such call be at such proper time or at a later time that is not in vacation. Note, however, that the second paragraph of Rule 237 provides for vacation procedure in instances of removal to federal court.

This construction of the rules is aided by the past decisions upon the subject, that, notwithstanding a defendant, even in term time, fails to file his answer by the time for default judgment, such judgment cannot be taken against him, if he files an answer before the default is actually taken. See Moore v. Janes, 6 Tex. 227 (1851); Ellett v. Britton, 6 Tex. 229 (1851); Hurlock v. Reinhardt, 41 Tex. 580 (1874); World Co. v. Dow, 116 Tex. 146 (1926).

5 Tex. B.J. 95 (1942) reprinted in 8 Tex. B.J. 8 (1945).

(No. 24) Question: In a tax suit is it permissible for citation issued for personal service to be made returnable on the Monday next after the expiration of twenty days from the date of service as provided in Rule 101?

Answer: Yes. The last sentence of Rule 2 provides that all statutes in effect immediately prior to September 1, 1941, prescribing rules of procedure in tax suits are continued in effect. Article 7328 provides that the defendants in tax suits "shall be served with process ... as provided by law' in ordinary foreclosure suits in the district courts of this state."

Said Article 7328 relating to procedure in tax suits was not repealed when the New Rules were adopted, and therefore under the last sentence of Rule 2 said procedure in tax suits is carried forward and remains in force, and by virtue thereof citation for personal service in a tax suit may properly be issued in conformity with Rule 101.

According to a previous Opinion (TEXAS BAR JOURNAL, Volume V, page 53). it was concluded that Article 7328.1, Section 5, which provides a specific form of citation to be used in tax suits, is still valid and in force by virtue of the last sentence in Rule 2. As above stated, however, citation by personal service in a tax suit will also be valid if issued in accordance with Rule 101, thus authorizing a cumulative Or additional form of citation in such a case.

5 Tex. B.J. 168 (1942) reprinted in 8 Tex. B.J. 13 (1945).

(No. 28) Question: Should a citation by publication contain the direction that if it is not served within ninety days from the date of issuance, it shall be returned unserved as provided in Rule 101?

Answer: Yes. Rule 114 provides that where citation by publication is authorized it "shall contain the requisites prescribed by Rules 15 and 101 insofar as they are not inconsistent herewith." One of the requisites of an ordinary citation prescribed by Rule 101 is the following:

"The citation shall further direct that if it is not served within ninety (90) days after date of issuance, it shall be returned unserved."

It is not inconsistent with requirements of Rule 114 to incorporate this requisite of an ordinary citation in the citation by publication and it should, therefore, be included.

5 Tex. B.J. 169 (1942) reprinted in 8 Tex. B.J. 13 (1945).

(No. 57) Question: In view of Rule 819, which declares that procedural statutes not listed in the enumeration of repealed articles shall continue as rules, is Article 4639a, providing for notice of contempt proceedings where a parent has been ordered to support minor children, governed by Rules 2, 15, and 101, the latter two rules requiring process to be answered on the first Monday succeeding twenty days after service?

Answer: We consider that notice of such a contempt proceeding is not governed by general Rules 15 and 101 as to time and that Rule 2 is not inconsistent with this conclusion. This particular matter is special, and favors prompt rather than delayed action because it involves the support of minor children. Since the amendment of the cited article (Acts 1941, 47 Legislature, H. B. No. 750) the latter consideration is again emphasized; if the amendment is valid in view of Art. III, Sec. 36 of the Constitution, the judge may even hold the contempt hearing in vacation.

5 Tex. B.J. 322 (1942) reprinted in 8 Tex. B.J. 23 (1945).

(No. 85) Question: Under Rule 101 within what time is it necessary, after suit has been filed, to have citation issued in order that the filing of the suit may stop the running of limitation?

Answer: Rule 101 did not change the established rule of decision that in order to toll the statute of limitation there must not only be a bona fide intention to have process issued but due diligence must be exercised to see that it is done. The rule with respect to statutes of limitation which require the action to be "commenced and prosecuted" within a designated time after the accrual of the cause of action is thus stated in Allen v. Masterson, 49 S.W.2d 855 (Tex. Civ. App.-Galveston 1932, writ ref'd):

"When a petition is filed, it is the duty of the clerk to issue citation immediately, and the plaintiff has the right to presume that the clerk will issue within a reasonable time. If, however, the clerk fails to do his duty, it is incumbent upon the plaintiff to see that it is done."

See also San Saba Nat'l Bank v. Parker, 135 Tex. 136, 140 S.W.2d 1094 (1940).

6 Tex. B.J. 76 (1943) reprinted in 8 Tex. B.J. 32 (1945).

(No. 115) Question: Rule 114 relating to citation by publication provides that the citation shall contain the requisites prescribed by Rules 15 and 101, provided no copy of the plaintiff's petition shall accompany the citation and that the citation "shall be directed to the defendant or defendants by name." The rule further provides that the citation, among other things, "shall contain the names of the parties." Is it necessary that the names of the defendants be stated twice in the citation, i.e. (1) In the direction of the citation and (2) in stating the names of the parties to the suit?

Answer: We are of opinion that it is unnecessary that the names of the defendants be stated twice in the citation, assuming that all the defendants are cited by publication. All parts of the, citation must be construed together. The portion of the citation indicating the names of the defendants to whom the writ is directed, is a part of the citation. Since a citation by publication is not accompanied by a copy of the plaintiff’s petition as is required in the case of citation in general, which petition discloses the names of the parties, the requirement of Rule 114 that the names of the parties be stated is designed to appraise the defendants not only as to who the plaintiffs are but also who the co-defendants are. No good purpose can be served by requiring that the names of the defendants be stated twice in the citation.

We are, therefore, of the opinion that a citation by publication directed to the defendants by name and which elsewhere in the body of the citation sets forth the names of the plaintiffs followed by the statement, in substance, that the defendants are those persons first named in the writ and to whom it is directed, complies with the requirements of Rule 114.

If there are other defendants, who are personally served, their names, of course, should appear in stating the names of the defendants by adding after the words “to whom it is directed,” as used in the preceding paragraph, some such wording as the following: “and (naming such other defendants) who are being (or have been) personally served with citation (or in any different manner authorized by law other than by publication).”

7 Tex. B.J. 44 (1944) reprinted in 8 Tex. B.J. 42 (1945).

(No. 123) Question: Should citations in suits for delinquent taxes by taxing units under Article 7845 (b) be issued and served as provided in Article 2022 of the 1925 Revised Civil Statutes, or as provided in Rule 101 of the Texas Rules of Civil Procedure?

Answer: Article 2022 of the statutes was repealed by the adoption of the Rules of Civil Procedure (see enumeration of repealed statutes) and therefore said article is no longer in effect and can not be used as a guide for the issuance of citations. Said article did not relate specifically or particularly to tax suits, and therefore it is not continued in effect by that portion of Rule 2 providing that statutes prescribing rules of procedure in tax suits are continued in effect.

However, there were statutes in effect prescribing specific procedure for the issuance and return, of citations in tax suits at the time of the adoption of the rules, and therefore said statutes are continued in effect under the above provision of Rule 2. Therefore, in regard to citation by personal service in tax suits, cumulative methods are permissible, one method being prescribed by Rule 101 of the Rules of Civil Procedure, and the other procedure being prescribed by statutes which specifically relate to tax suits.

The subcommittee has heretofore given opinions upon this matter, and we refer you to the opinion appearing in 5 Tex. B.J. 53, and Opinion No. 24 appearing in 5 Tex. B.J. 168 .

See also Opinion No. 38 in 5 Tex. B.J. 171 relating to procedure in regard to citation by publication in tax suits.

7 Tex. B.J. 152 (1944) reprinted in 8 Tex. B.J. 46 (1945).

Question: Under Rules 101, 107, and 108 of the Texas Rules of Civil Procedure, is it necessary for the validity of the citation that a copy of the citation upon which the officer makes his return and files in the court be accompanied by a copy of the plaintiff's petition?

Answer: In the opinion of the committee, the answer is "No."

The purpose of the provision that the citation should be accompanied by a copy of the plaintiff's petition is to give the defendant notice, at the time of service, of the nature of the plaintiff's demands. This purpose is accomplished when a copy of the plaintiff's petition is served on the defendant, and to require that another copy be filed in the papers of the Court with the officer's return would be useless. The original petition is already on file to be referred to if necessary and the filing of copies thereof attached to the citation would unnecessarily increase the files and would serve no purpose.

The language of Rule 101, which states that the citation "shall be accompanied by a copy of the plaintiff's petition" indicates that a copy of the plaintiff's petition is not considered as a part of the citation. Likewise in Rule 107, with reference to the return on the citation, it is provided: "it shall state when the citation was served and the manner of service and shall certify that a true copy of the citation with the accompanying copy of the petition was delivered to the defendant and was signed by him officially." This would indicate that the accompanying copy of the petition was not a part of the citation itself, otherwise it would not be necessary for the officer in his return to certify that a true copy of the petition was delivered to the defendant. Rule 107 provides that the officer executing ,the citation shall make his return thereon or attach it thereto, and there is no provision in Rule 107 providing that a copy of the plaintiff's petition should accompany the sheriff's or other officer's return thereon.

Rule 101 further provides that the party filing any pleading upon which citation is to be had shall furnish the clerk with a sufficient number of copies thereof for use in serving the parties to be served and this, in the opinion of the committee, requires only one copy for each of the parties to be served. The inference being that the parties defendant are each to be served with a copy of the petition but no provision is made for extra copies to be used by the officer serving the citation and attached to his return thereof.

Prior to the effective date of the Rules of Civil Procedure, Articles 2037 and 2038 of the Statutes applied in notices to serve non-residents. Article 2037 provided that the notice shall state that a copy of the plaintiff's petition accompanies the notice and that a certified copy of plaintiff's petition shall accompany the notice. Article 2038 provides that the defendant shall be delivered a true copy of the notice, together with a certified copy of the plaintiff's petition. Within the knowledge of the committee, it has always been the custom of the clerks under such Articles to attach a certified copy of the plaintiff’s petition only to the copy of the notice which was actually served on the defendant. The committee has searched the cases bearing on Articles 2037 and 2038 and has failed to find any case in which the question was raised as to whether the return of the notice to serve non-residents made by the officer and filed in court should also be accompanied by a certified copy of the plaintiff's petition.

IT IS, THEREFORE, the opinion of the committee that the copy pf the plaintiff's petition is not a part of the citation, or notice to serve non-residents, and it is not, therefore, necessary that a copy of such petition be attached to the citation upon which the sheriff makes his return and files in the court.

8 Tex. B.J. 51 (1945).

Question: (1) In guardianship proceedings in the County Court should the citation required by Article 4116, Vernon Statutes, as amended, for minors over fourteen years of age be directed to the minor or should it be directed to any sheriff or any constable within the State of Texas, or should it be directed to the sheriff or any constable of the county within which the minor appears to be at the time?

(2) In such proceeding as is assumed in Question No.1 above should the notice required by Article 4114, Vernon Statutes, as amended, be directed to the sheriff or any constable of the county within which the proceeding is pending, or should notice be directed to any sheriff or any constable within the State of Texas?

Answer: Articles of the Statutes Nos. 2021, 2022, 2228 and 2286 have been expressly repealed.

Article 2286 provided in substance that all writs and processes should be directed to the sheriff or any constable of the proper county. Since this Article has been repealed, it appears that Rules 15 and 101 now contain the sole provisions in respect to the form and contents of writs and citations.

It is true that Rule 2 preserves the rules of procedure in guardianship proceedings as provided by a statute, but there seems to be no article in the probate statutes providing to whom a citation should be directed. Article 3310 sets forth the requisites of citation in probate but does not state to whom the citation should be directed. This is true also in respect to Articles 3310a, 3311, 3333, 4414, 4415 and 4416. Article 3333 does state to whom the Clerk is to deliver the citation, stating that it shall be delivered to the sheriff or constable of the proper county.

Since Article 2286 has been superseded by Rules 15 and 101, and since the probate articles do not contain an express provision as to whom the notice or citation should be directed, it is the opinion of the Committee that the notice required by Article 4114 and the citation provided by Article 4116 should be directed to any sheriff or constable within the State of Texas.

10 Tex. B.J. 271 (1947).