Rule 119. Acceptance of Service (Dec1941)

TEXT

The defendant may accept service of process, or waive the issuance or service thereof by a written memorandum signed by him or by his duly authorized agent or attorney, sworn to before a proper officer other than an attorney in the case, and filed among the papers of the cause, and such waiver or acceptance shall have the same force and effect as if the citation had been issued and served as provided by law. The party signing such memorandum shall be delivered a copy of plaintiff's petition, and the receipt of the same shall be acknowledged in such memorandum.

Amended by order of Sept. 20, 1941, eff. Dec. 31. 1941: It is provided that the officer shall be "other than an attorney in the case," and the last sentence is added.

ADVISORY OPINIONS

(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 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.

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