Clark v. Wilcox

Citations

• 31 Tex. 322

Syllabus

<p>The failure of the clerk of the district court to copy the return of a sheriff upon ’a summons, whereby the judgment was reversed and the defendant in error lost his debt, makes the clerk liable for the amount, and the substantial averment of the facts, and that the defendant had become insolvent, are a sufficient statement of the cause of action.</p> <p>The return of the sheriff was in these words: “ Came to hand the 5th of April, I860; executed on the 7th of the same month by delivering in person to Andrew Herron a certified copy of the petition and a copy of this writ.” This was a sufficient compliance with the statute. (Paschal’s Dig., Art. 1433, Note 545.)</p> <p>“The time and manner of service” does not mean a useless narrative of facts, hut only that a copy of the process and petition were delivered to the defendant himself and, when. (Paschal’s Dig., Arts. 1507, 5121, Notes 593, 1122.)</p> <p>The return of the sheriff need not follow the very language of the statute, if it set forth the substantial facts necessary to a good service.</p> <p>The return need not set forth that the person served was the defendant, if he be correctly named. (Brown v. Robertson, 28 Tex., 555.)</p> <p>If the court has already substantially given an instruction asked, it is not error to refuse to repeat it. (Paschal’s Dig., Art. 1464, Note 562.)</p> <p>If in suing out an attachment the plaintiff was not actuated by malice towards the defendant, nor other motive than a desire to secure the payment of the debt sued upon, the rule of damages, if the attachment be dissolved, is the damages actually sustained. (Paschal’s Dig., Art. 3446, Note 797.)</p>