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Rule 106. Service of Citation (1947)

TEXT

Unless it otherwise directs, the citation shall be served by the officer delivering to each defendant, in person, a true copy of the citation with the date of delivery endorsed thereon and with a copy of the petition attached thereto. Where it is impractical to secure personal service, as above directed, the court, upon motion, may authorize service by leaving a copy of the citation, with petition attached, at the usual place of business of the party to be served, or by delivering same to anyone over sixteen years of age at the party's usual place of abode, or in any other manner which will be reasonably effective to give the defendant notice of the suit.

Amended by order of Aug. 18, 1947, eff. Dec. 31, 1947: The sentence commencing "Where it is impractical" and ending "notice of the suit" has been added.

ADVISORY OPINIONS

(No. 25) Question: Should the official or party making his return on a citation or notice as provided for by Rules 107 and 108 show in such return that the copy delivered to the defendant had endorsed thereon the date of such delivery as is provided for in Rule 106?

Answer: In view of the fact that Rule 107 requires the return to show "the man­ner of service," we are of the opinion that the return should show that the date of delivery was endorsed on the copy of cita­tion or notice in accordance with Rule 106, because Rule 106 makes such en­dorsement a part of the manner of service.

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

(No. 80) Question: If the officer serving a citation fails to endorse “the date of delivery" upon the copy of the citation which is delivered to the defendant as required by Rule 106, does the trial court have jurisdiction to the extent that a judg­ment by default can be taken, provided the service was correct in other respects?

Answer: In our opinion the failure of the officer to endorse the date of delivery upon the copy of the citation delivered to the defendant does not affect the juris­diction of the trial court to' render a default judgment.

Such endorsement does not constitute a part of the citation itself, and it is merely for the convenience of the defendant to relieve him from the uncer­tainty of his own memory or from the inconvenience of referring to the officer's return in order to make sure of the date of service. The fact that Rule 107 pre­cludes the rendition of a default judgment until the officer's return shall have been on file with the clerk for ,at least ten days, assures to the defendant and his attorney ample opportunity to make certain of the date of service, in event the officer fails to note said date on the copy delivered to the defendant. This provision tends to show that the notation of the date on the defendant's copy is not mandatory in the sense that failure to comply therewith would invalidate the service. In our opinion a default judgment is valid not­withstanding the officer fails to make said notation on the copy delivered to the de­fendant.

In this connection, however, we feel that if the defendant seasonably moves to set aside the default judgment and shows that he was in fact injured or misled by the officer's failure to endorse the date of service upon his copy, in such a case the trial court should set aside the default judgment and give defendant an opportunity to appear and have a trial on the merits. This would be in harmony with Rule 1 and with the general spirit of all the rules which indicates that the rules should be so construed as to attain real justice between the parties.

6 Tex. B.J. 20 (1943) reprinted in 8 Tex. B.J. 30 (1945).