Central & Montgomery Railroad v. Morris & Crawford

Citations

• 68 Tex. 49
• 3 S.W. 457
• 1887 Tex. LEXIS 641

Syllabus

<p>1. Service op Citation.—In a suit against two railway companies, through a local agent, upon whom service of citation is obtained as the agent of both companies, and who is thus described in the petition, a copy of the citation should be left with such agent for each defendant.</p> <p>2. Same.—In a suit against several defendants residing in the same county, the procuring of one citation for each defendant, when the statute directs that one citation shall issue for all the defendants, might render the plaintiff liable for unnecessary costs, but could not vitiate the service of citation.</p> <p>3. Variance.—When a suit is against a defendant as a railway company, and the citation commands the sheriff to summon the defendant, described therein as a railroad company, the variance is immaterial.</p> <p>4. Appearance—Statute Construed.—The statute (Revised Statutes, artiele'1313) which provides that if citation or service thereof are quashed on defendant’s motion, he shall be deemed to have entered his appearance at the next term of the court, compels the constructive appearance of the defendant to the merits at the next term, whether his motion be sustained or not.</p> <p>5. Same.—If the motion to quash be properly overruled, the defendant is in - court from the time of the service; if improperly overruled, and the ease is'continued, he has obtained all the benefit that could have resulted if his motion had been sustained, and, the error being immaterial, would afford no ground for reversing a judgment afterwards rendered, and no constitutional right of the defendant is infringed thereby. The rale tends not only to a speedy administration of justice, and the saving of costs in litigation, and should be liberally construed.</p> <p>6. Pleading.—In a suit against a railway company for continuous withholding and refusal to furnish facilities for shipping lumber to any place, whereby the entire products of plaintiff’s mills, where The lumber was cut, were kept from market