Citations
- 3 Tex. 261
Full opinion text
Mr. Justice Wheeler,
after stating the facts, delivered the opinion of the court.
Por the plaintiff in error, it is insisted that the court erred in permitting the amendment:
1st. Of the writ.
2d. Of the petition.
1. The practice of permitting the amendment of defective writs, so as to cure defects occasioned by mere clerical omissions or mistakes, has very generally prevailed in both the English and American courts. [1 Chit. Pl. 283; 19 Wend. 99; 15 id. 304; 11 Verm. 331; 20 Pick. 38; 18 Wend. 675; 3 Ala. 250; 2 Smedes & Marsh. 307; 1 Hill, 204; 2 Brock. 13; 9 Porter, 320; 5 Smedes & Marsh. 259; 4 Cowen, 41; 5 Pick. 663; 5 Blackf. 374.]
It was recognized, as applicable to citations, by this court, in the case of Kavanaugh vs. Brown [1 Tex. Rep. 481]. The only question, therefore, which need now be considered is, as ■to the propriety of allowing this particular amendment.
We know of no rule of law, nor is it insisted that there is any principle or precedent, which forbids the amendment of an omission or mistake in respect to the seal, rather than in •respect to any other essential requisite of a citation. And it would be difficult to assign any satisfactory reason. why this particular defect should be especially incurable. The seal is an ingredient, in the formation of a citation, not more particularly defined and prescribed, or more certainly required by the statutes, than the style of the writ, the teste in the name of the clerk, the names of the parties to the suit, the time and place of holding the court, the date, and the signature of the clerk. [Acts 1846, 366, sec. 10.] And, indeed, it would seem that the omission of the seal would be less likely to mislead the defendant as to the essential facts, of which it is the object of the law that he shall be apprised by the citation, than almost any other one of these essential requisites prescribed by the statute. If, in respect to any of these requirements, the citation may be amended, why not also in respect to the seal? It ■does not seem elsewhere to have been considered that its omis- ■ -sion, or misapplication even, was less the subject of amendment than other defects in the process. In Hew York, in a case where the seal, attached to a certiorari, was not the seal of the court out of which the writ issued, an amendment, by -affixing the right seal, was allowed. [5 Wend. 103.]'-
In another case, a venire was permitted to be amended, by •adding a seal and filing a sheriff’s return thereto, nunc pro