As pertaining to district and county court legal cases: Where the defendant accept service in a divorce case this rule pertaining to the time for which an officer's return shall lie on file before default judgment is not applicable and therefore, insofar as this case is concerned, the case may be heard after the expiration of 30 days after suit is filed whether such acceptance of service has been on file ten days as required by the rule or not.
Citation by publication: Rule 107 providing that 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 for ten days, exclusive of the filing and the day of judgment does not apply to a citation by publication. There can be no default judgment when the citation is by publication, but under Rule 244 in the absence of an an answer or appearance within the prescribed time the court must appoint an attorney to defend the suit in behalf of the defendant. No attorney can be appointed until appearance day which is fixed by rule 114. 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 consecutive weeks.
Endorsement of delivery date: The failure of the officer serving a citation to endorse the date of delivery upon the copy of the citation delivered to the defendant does not affect the jurisdiction, but if the defendant seasonbly moves to set aside the default judgment and show that he was in fact injured or misled by the officer's failure to endorse the date of service uppon the copy the trial court should set aside and give the defendant an opportunity to appear and have a trial on the merits. 6 Texas B.J. 168 (1942); 8 Texas B.J. 13 (1945).
Citation by publication: Rule 107 providing that 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 for ten days, exclusive of the filing and the day of judgment does not apply to a citation by publication. There can be no default judgment when the citation is by publication, but under Rule 244 in the absence of an an answer or appearance within the prescribed time the court must appoint an attorney to defend the suit in behalf of the defendant. No attorney can be appointed until appearance day which is fixed by rule 114. 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 consecutive weeks.
Endorsement of delivery date: The failure of the officer serving a citation to endorse the date of delivery upon the copy of the citation delivered to the defendant does not affect the jurisdiction, but if the defendant seasonbly moves to set aside the default judgment and show that he was in fact injured or misled by the officer's failure to endorse the date of service uppon the copy the trial court should set aside and give the defendant an opportunity to appear and have a trial on the merits. 6 Texas B.J. 168 (1942); 8 Texas B.J. 13 (1945).
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