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Rule 244. On Service by Publication

TEXT

Where service has been made by publication, and 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; but, in every such case a statement of the evidence, approved and signed by the judge, shall be filed with the papers of the cause as a part of the record thereof. The court shall allow such attorney a reasonable fee for his services, to be taxed as part of the costs.

Source: Art. 2158, with minor textual change.

Oct. 29, 1940, eff. Sept. 1, 1941.

ADVISORY OPINIONS

(No. 72) Question: In a suit in trespass to try title numerous defendants are cited by publication. No answer will be filed nor voluntary appearance made by any defendant. An attorney will be appointed by the court to represent them under Rule 244. Is the clerk of the district court entitled to charge 15 cents for entering the appearance of each defendant or only 15 cents for all defendants cited by publication and represented by the attorney appointed by the Court?

Answer: We think the matter is regulated by Article 3927 of the Revised Statutes relating to fees of district clerks which lists, among other charges, the following: "Entering appearance of each party to a suit, to be charged but once - 15 cts." This article was not repealed by the adoption of the rules nor did the rules make any substantial change in any existing statute which affects the decision of the question. The question involves the interpretation of the statute and not of the rules, and is not therefore within the scope of the duties of the committee. We refer, however, to an opinion (No. 2871) of Attorney General Allred to Tom G. Oliver, Jr., County Attorney of Hays County, Texas, dated October 12, 1931 (Biennial Report of the Attorney General of the State of Texas, from September 1, 1930 to August 31, 1932, 306 (1933)) holding that the clerk was entitled to 15 cents for entering the appearance of each party to the suit where the clerk actually makes an entry of such appearances upon his docket with the dates thereof.

5 Tex. B.J. 465 (1942) reprinted in 8 Tex. B.J. 28 (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. 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).