Pipkin v. Kaufman & Runge

Citations

• 62 Tex. 545
• 1884 Tex. LEXIS 288

Syllabus

<p>1. Citation, service of.— As to defendants living in the county of the venue of a cause, a citation which would be valid if served with an accompanying copy of petition, is equally valid if properly served, though no copy of the petition accompanies it.</p> <p>2. Same — Statute construed—Variance. — See opinion for a construction of art. 1315, E. S., which requires a “ brief statement of the cause of action ” to be made, when service is had by publication; and also for a discrepancy between the petition and the publication as to dates, held not to constitute a fatal variance.</p> <p>3. Judgment.— The failure of a judgment by default to recite that a defendant was served with process, and failed to appear and answer, will not affect its validity when the record discloses the service.</p> <p>4. Same.— Due diligence must be used to procure the correction of a judgment entered by mistake. It should be called to the attention of the court within the time prescribed by law, and when the mistake has resulted in a judgment against the party complaining, the motion to correct should be accompanied by an affidavit as to merits.</p>