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Rule 118. Amendment
At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.
Source: Art. 2044, Federal Rule 4 (h).
Change: The rule authorizes amendment in the process as well as in the proof of its service.
Oct. 29, 1940, eff. Sept. 1, 1941.
(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).
7 Tex. B.J. 281 (1944)