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Rule 107. Return of Citation (1978)

TEXT

The return of the officer executing the citation shall be endorsed on or attached to the same; it shall state when the citation was served and the manner of service and be signed by him officially. When the citation was served by registered or certified mail as authorized by Rule 106(b), the return by the officer must also contain the return receipt with the addressee's signature. When the officer has not served the citation, the return shall show the diligence used by the officer to execute the same and the cause of failure to execute it, and where the defendant is to be found, if he can ascertain.

Where citation is executed by an alternative method as authorized by Rule 106 (e) or (f), proof of service shall be made in the manner ordered by the court.

No default judgment shall be granted in any cause until the citation with proof of service as provided by this rule, or as ordered by the court in the event citation is executed under Rule 106 (e) or (f), shall have been on file with the clerk of the court ten days, exclusive of the day of filing and the day of judgment.

Amended by order of July 11, 1977, eff. Jan. 1, 1978: Provides manner of return when service by mail or by an alternative method.

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. 76) Question: Do the provisions of Rule 107 that "No default judgment shall be granted in any cause until the citation, with the officer's return thereon, shall have been on file with the clerk of the court ten days," require that a waiver of citation as provided for in Rule 119 shall have been on file ten days before default judgment may be taken?

Answer: Waiver of citation under Rule 119 evidently contemplates that no citation is issued and consequently that the sheriff makes no return. It involves the signing of a paper under oath and the filing of the, paper in the cause. Consequently, in our opinion, Rule 107, pertaining to the time for which an officer's return shall lie on file before default judgment, is inapplicable to a case of this sort. However, we beg to call to your attention such cases as PPearce v. Tally, 8 Tex. 304 (1852), and Guerra v. Guerra, 213 S.W. 360 (Tex. Civ. App.-San Antonio 1919), which hold that the regular time between service of citation and default shall intervene in the case of a waiver under Article 2045, which Rule 119 in substantially the same wording supersedes.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 29 (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).

(No. 82) Question: Rule 107 provides, in part: "No default judgment shall be granted in any cause until the citation, with the officer's return thereon, shall have been on file with the clerk of the court ten days, exclusive of the filing and the day of judgment." Is this requirement applicable to a citation by publication? Can the court appoint an attorney to represent the defendant before appearance day?

Answer: We are of the opinion that the questions should be answered in the negative. The requisites of a citation by publication are prescribed by Rule 114, the form thereof in actions involving land by Rule 115, the service thereof by Rule 116 and the return by Rule 117. These rules specifically prescribe the procedure with respect to citations by publication and Rule 107 dealing with citations in general is not applicable.

There can be no default judgment when the citation is made by publication. Under Rule 244 "if no answer has been filed nor appearance entered within the prescribed time, the court shall appoint an attorney to defend the suit in behalf of the defendant and judgment shall be rendered as in other cases."

We are of the opinion also that no attorney can be appointed until appearance day which is fixed by Rule 114 (and is required to he set forth in the citation) "at or before 10 o'clock a.m . of the first Monday after the expiration of 42 days from the date of issuance thereof, specifying the day of the week, the day of the month, and the time of day the defendant is required to answer."

The sheriff should make his return promptly after the last publication but the court should make certain that the citation has been published once each week for four (4) consecutive weeks "the first publication to be at least twenty-eight (28) days before the return day of the citation" before appointing an attorney to represent the defendant who has not otherwise made an appearance on the days he is required to appear.

6 Tex. B.J. 20 (1943) reprinted in 8 Tex. B.J. 31 (1945).

(No. 107) Question: 1. Do Rules l07 and 119 construed together require that a waiver of services should be on file ten days before a default judgment can be rendered? and

2. In a divorce case where service is accepted must it likewise remain on file ten days before the court can proceed with the hearing at any time after the expiration of thirty days from the time the suit is filed?

Answer: 1. In answer to your first question, we are of opinion that waiver of citation under Rule 119 contemplates that no citation is issued and consequently that the sheriff makes no return. It involves the signing of a paper under oath and the filing of the paper in the cause. Consequently Rule 107, pertaining to the time for which an officer's return shall lie on file before default judgment, is not applicable to a case of this sort. However, we call your attention to such cases as Pearce v. Tally, 8 Tex. 304 (1852), and Guerra v. Guerra, 213 S.W. 360 (Tex. Civ. App.-San Antonio 1919), which hold that the regular time between service of citation and default shall intervene in the case of a waiver under Article 2045, which Rule 119, in substantially the same wording, supersedes. This is in accordance with an opinion heretofore expressed by us, the synopsis of which appears in 5 Tex. B.J. 465.

2. In answer to the second question: it is provided in Article 4632 that a suit for divorce shall not be heard or divorce granted before the expiration of thirty days after the same is filed. It follows that whether citation is regularly served on the defendant or he accepts service in a divorce case, it cannot be heard before the expiration of thirty days after suit is filed by force of the statute. We think, however, where the defendant accepts service, Rule 107 pertaining to the time for which an officer's return shall lie on file before default judgment is inapplicable; and therefore insofar as Rule 107 is concerned the case may be heard after the expiration of thirty days after the suit is filed whether such acceptance of service has been on file ten days as required by Rule 107 or not. As in the previous paragraph, we should, in this connection, call attention to the decisions there cited upon a related though not identical subject.

It should be borne in mind, however, that in a divorce case the defendant has the right to appear and contest the divorce even if he has not answered since the statute provides that the petition for divorce shall not be taken as confessed and that "the decree of the court shall be rendered upon full and satisfactory evidence upon the judgment of the court affirming the material facts alleged in the petition," Article 4632; Bostwick v. Bostwick, 73 Tex. 182, 11 S.W. 178 (1889); Guerra v. Guerra, 213 S.W. 360, 362 (Tex. Civ. App.-San Antonio 1919).

7 Tex. B.J. 14 (1944) reprinted in 8 Tex. B.J. 39 (1945).

(No. 118) Question: Rule 107 provides that no default judgment shall be granted in any cause until the citation with the officer’s return thereon shall have been on file with the clerk of the court ten days before the default judgment is taken. Does such rule apply where citation has been obtained through publication?

Answer: We are of the opinion that Rule 107 by its wording, history and purpose, and by reason of Rule 244, does not apply to citation by publication in the respect mentioned. Where citation is had by publication, there is no default judgment but the appointment of an attorney and a trial. Consequently, the prescription of ten days filing before default judgment, which is made by Rule 107, has no application to situations of citation by publication. Such prescription was made to meet an abuse that had to some extent grown up in connection with default judgments. Sometimes attorneys who sought such character of judgments caused filing of the returns to be withheld until the time of at which they asked for the judgments and thus deprived defendants or their attorneys of fair opportunity to appraise the sufficiency of the service. This difficulty, however, does not present itself in cases where default judgments are not taken.

7 Tex. B.J. 45 (1944) reprinted in 8 Tex. B.J. 43 (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).