Rule 122. Constructive Appearance
If the citation or service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a. m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as to require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him.
Source: R. C. S. Articles 2048 and 2092, Sec. 8.
Change: Art. 2092, Sec. 8, unchanged is made applicable to all courts throughout the State.Oct. 29, 1940, eff. Sept. 1, 1941.
(No. 71) Question: In a forcible detainer proceeding, the citation was addressed to the sheriff or constable instead of the defendant, as provided by Rule 739. Upon motion of the defendant, the citation was quashed. It is contended on the one hand that this is a special proceeding returnable at a special term of the justice court (Stacks v. Simmons, 58 S.W. 958 (Tex. Civ. App. 1900) and that it is necessary to have issued a new citation. On the other hand, it is contended that there has been a constructive appearance by virtue of Rule 122, and that under the holding of Clayton v. Hurt, 88 Tex. 595, 32 S.W. 876 (1895), the justice court is not authorized to apply any other than the ordinary rules of law governing its proceedings, though the only question is possession, and the defendant is in court ten days hence or at least the first day of the next term. Will appreciate if you will advise your interpretation.
Answer: This subcommittee is of the opinion that the quashal would be an appearance and that at the time mentioned in Rule 122, if the justice court is then in session, and, if not, at the succeeding term of such court, the cause should proceed against the defendant.
Rule 122 makes such a quashal an appearance, and though it applies specifically to district and county courts it is, in our opinion, by force of Rule 523, made a part of the procedure in the justice courts in so far as it "can be applied, except where otherwise specially provided by law or ... rules."
We believe it can be applied and have found no conflicting requirements.
In the first case that you cite, as we read it, the Court of Civil Appeals found an inconsistency as between ordinary default judgment and forcible entry and detainer procedure but considered that in other respects the procedure to be applied in prosecuting this remedy was the ordinary procedure of the justice court. In the second of the cited cases the Supreme Court holds that in forcible entry and detainer the justice court is one of general jurisdiction and that its judgment On collateral attack is consequently good as against merely procedural defects. Evidently under each of the decisions ordinary procedure applies as a general rule in forcible entry and detainer.
Rule 122, concerning the effect of a quashal in district and county courts, reads:
"If the citation of service thereof is quashed on motion of the defendant, such defendant shall be deemed to have entered his appearance at ten o'clock a. m. on the Monday next after the expiration of twenty (20) days after the day on which the citation or service is quashed, and such defendant shall be deemed to have been duly served so as require him to appear and answer at that time, and if he fails to do so, judgment by default may be rendered against him."
There seems to be no reason against applying this article in a forcible entry and detainer suit in the justice court unless it be that the time for taking defaults in justice courts is different from that above mentioned as the date for appearance and answer. We are of the opinion that those two occurrences would not necessarily coincide. For instance, they will not do so, in our opinion, in the district and county courts, themselves, whenever the first Monday, above mentioned, falls in vacation. See our views in 5 Tex. B.J. 95. So that, as we see it, another time for default would not bring about an irreconcilable conflict. The present case, however, is not one of default and, even with more force, we can see no reason against applying to it the appearance rule, above quoted, and. requiring trial without further citation after the quashal of the first citation.5 Tex. B.J. 428 (1942) reprinted in 8 Tex. B.J. 27 (1945).