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Rule 117. Return of Citation by Publication (1941)

TEXT

The return of the officer executing such citation shall be indorsed or attached to the same, and show how and when the citation was executed, specifying the dates of such publication, be signed by him officially and shall be accompanied by a printed copy of such publication.

Source: Art. 2043, unchanged.

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

ADVISORY OPINIONS

(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. 122) Question: The sheriff's return to a citation by publication, to which was attached a copy of the publication and the affidavit of the publisher as to the dates of publication, disclosed that it was published once each week for four consecutive weeks. The sheriff returned the citation to the clerk where it was filed less than twenty-eight days from the date of first publication, but within forty days of its issuance. Is the service good or is it void because the sheriff did not hold the citation in his possession for twenty-eight days after first publication excluding the day of the publication and the day it was returned to the clerk's office?

Answer: We think the service is valid. A citation by publication issued from the district or county court shall command the defendants to appear and answer at or before ten o'clock of the first Monday morning after the expiration of forty-two 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 (Rule 114). Rule 116 provides that citation by publication shall be served by the sheriff or any constable of any county of the state by having it published once each week for four consecutive weeks, the first day of publication to be at least twenty-eight days before the return day of the citation. We are of the opinion that the phrase "the return day of the citation," as used in Rule 116, refers to the day the defendants are required by the citation to appear and answer under Rule 114 and not to the day the sheriff actually returns the process to the clerk. The intent of the rule is that the defendant shall have at least twenty-eight full days after the first publication before he is required to answer. The fact that the sheriff may have actually returned the process to the clerk before the expiration of twenty-eight days from the date of first publication is of no materiality here, since it appears that the first date of publication was more than twenty-eight full days before the day the defendant was commanded to appear and answer and that is the essential thing required by the rules.

We call attention to Rule 118 which permits "any process or proof of service to be amended" in the discretion of the court. Even if there were substance in the point raised the court ought not to hold the citation and return void but should direct that the return be amended and the clerk's file mark changed to show that it was filed after the expiration of twenty-eight days. However, nothing of the sort is required in the circumstances stated. We call attention to the rule permitting amendments to process and return merely to bring to the fore the concept of the rules that form shall not be allowed to control the substance of things unless imperatively required in the interest of justice.

7 Tex. B.J. 118 (1944) reprinted in 8 Tex. B.J. 45 (1945).

(No. 126) Question: The opinion of the subcommittee appearing as No. 122 at 7 Tex. B.J. 118, expresses the view that where a citation has been published, as required by Rule 116, "once each week for four consecutive weeks," with "the first publication ... at least twenty-eight days before the return day of the citation," and where the officer's return is made after the last publication and shows the total publication required by the rule, judgment is not erroneous by reason of the mere fact that such return is filed before the expiration of the twenty-eight days. Is this opinion correct in view of O’Connor v. Towns, 1 Tex. 107 (1846); Wagner v. Urban, 170 S.W.2d 270 (Tex. Civ. App.-Amarillo 1943); and Daniel Miller Co. v. Puett, 252 S.W. 333 (Tex. Civ. App.-El Paso 1923)?

Answer: The cited cases, as we read them, involved situations in which it appeared that there had been insufficient service or in which the returns failed to show sufficient service. In the case last cited, one of the reasons why the return failed in this respect was that it was made within fourteen days after the writ was issued and therefore did and could not show the four publications. It was in this connection that the court said, as a reason for its decision, that the return was filed “before the full twenty-eight days for publication were up."

The fact situation assumed in the question at hand is different. The four consecutive publications could be shown in the return and were so shown, and the judgment ensued after the full time required by Rule 114.

As we read the rules, no requirement is made that the officer's return shall be made on or after the full twenty-eight days elapse. The requirement in this respect is only that the return show the four publications, etc. Rule 117. The return would consequently have to be made subsequently to the fourth publication, but, in our opinion, it would not have to be delayed further. As we observed in the previous opinion, when Rule 116 calls for the twenty-eight days' service before "return day," it does not refer to the day upon which the officer's return is actually made. See R. S. Arts. 2036 and 2039, similar words in all the preceding revised statutes, and 37 Words and Phrases 548.

7 Tex. B.J. 281 (1944) reprinted in 8 Tex. B.J. 47 (1945).

Questions: In a condemnation suit under Article 3264, where the residence of the defendant is unknown and it is necessary to obtain citation by publication, the following questions are presented:

1. Does Section 8 of Article 3264 authorize service by the posting of the notice or citation, when construed in connection with Article 29 (a), Section 5?

2. Does Rule 647 authorize service of citation in such a proceeding by posting instead of by publication?

3. Do Rules 114 to 117, inclusive, authorize the posting of citation for 28 days in lieu of publication, should there be a refusal on the part of one newspaper in an adjoining county to publish the citation at the statutory rates?

Answers: Question number 1 solely involves a construction of Statutes as distinguished from the Rules of Procedure, and therefore the Subcommittee does not feel that it is within its province to answer said question. Whether Article 3264 is so worded as to invoke the provisions of Article 29 (a) is not a matter over which this Subcommittee should undertake to express an opinion. However, the provisions of Article 3264, Section 8, expressly state that "Such notice may be served by publication in the manner provided for such service of citation by publication in other civil cases in the district or county court," and therefore the Subcommittee is of the opinion that citation by publication may be served in such a situation in the manner provided for by Rules 114 to 117.

In answer to question No.2, the Subcommittee is of the opinion that Rule 647 is not applicable to citation by publication nor to the notice provided for by Article 3264 in condemnation proceedings because such notice is in the nature of a citation. Therefore, we answer the second question in the negative.

We answer Question No.3 in the negative. Rules 114 to 117 provide solely for the service of citation by publication, and they do not make any provision for serving such citation by posting. If one newspaper in an adjoining county refuses to publish the citation at the statutory rates resort should be had to another newspaper to make the publication of the citation.

9 Tex. B.J. 262 (1946).