The auditor's report does state that Harper's report to the Commissioners Court "shows that he received from J. C. Hart, tax collector of Marion County, on account of bonds and interest from all told $1682.56." Here is a distinct finding by the auditor that Harper had received that amount, and the auditor's report, not having been excepted to, made a prima facie case against the sureties for such amount. This finding is not affected by the additional statement of the amount shown to be on hand in his report to the Commissioners Court, or the admission made in the exhibit attached to his pleading. Had these statements and admissions been excluded, the result must have been the same. We hold that if there was error in not sustaining the exception to the admission made in the exhibit attached to his pleading and the statement made in his report to the Commissioners Court, showing the balance on hand, the same was harmless.

There was no error in excluding the report of John M. Harper upon which the auditor based his finding that Harper had received $1682.56 from J. C. Hart, tax collector of Marion County, on account of bonds. and interest. The purpose for which this report was offered was to contradict the auditor's report. That report, not having been excepted to, was conclusive, and could not be contradicted. Whitehead v. Perie, 15 Texas, 7; Boggs v. State, 46 Texas, 10; Earle Mfg. Co. v. Hanaway, 91 Texas, 581.

For the same reason there was no error in excluding the receipt of Rowell, successor as county treasurer to Harper. This receipt tended to contradict the auditor's report, and it does not show out of what fund the money paid on said vouchers arose.

2. After the evidence was closed and the argument begun the plaintiff asked permission to introduce in evidence the depositions of R. M. Love and J. W. Robbins, then on file. To this counsel for Stallcup and Alley objected, because the effect and purpose of said testimony is to supplement, amend and contradict the auditor's report, and because the original report fixed no liability on these defendants, and the effect of the proof was to fix such liability, in that it is shown by the auditor's report that between the 5th day of December, 1896, and the 23d day of March, 1897, said Harper had received $6342.13, and by the depositions offered in evidence it was shown that said sum was received between December 30, 1896, and March 23, 1897, and that said Harper re ceived no part of said sum between December 5, 1896, and December 30, 1896. It was further objected that the testimony comes too late, and plaintiff had filed no objections to the auditor's report.

It is held that it is within the discretion of the trial judge to admit testimony after the evidence has been closed and the argument begun, and unless the record shows that there has been an abuse of such discretion his action will not constitute reversible error. Railway Co. v. Holliday, 65 Texas, 519; Railway Co. v. Johnson, 5 Texas Civ. App., 24. It does not appear that there was any abuse of discretion in this

case.

The plaintiff, not having excepted to the auditor's report, could not introduce evidence to contradict it. Does the evidence offered and admitted contradict the auditor's report? As stated in the exception, the auditor's report showed that between the 5th day of December, 1896, and the 23d day of March, 1897, Harper had received available school funds in the sum of $6342.13, while the depositions read in evidence showed that said sum was received between December 30, 1896, and March 23, 1897, and that no part of said sum was received between December 5, 1896, and December 30, 1896. The purpose of the testimony was to show that the account of Harper stood the same on December 30, 1896, that it did on December 5, 1896. This evidence did not contradict the auditor's report. Evidence that Harper received from the State certain moneys between December 30, 1896, and March 23, 1897, does not contradict a statement that such moneys were received between December 5, 1896, and March 23, 1897. Both statements are consistent, and in this case both are true. The fact that on December 30, 1896, a new bond was approved, and that the effect of the testimony was to place liability for the defalcation on the makers of that bond, can not affect the question. The bond was filed with the Commissioners Court on December 5, 1896, and the report of the auditor showed the condition of Harper's account on that day, while the bond was not approved and did not become effective until December 30, 1896. The testimony of Love and Robbins showed that the account stood the same on December 30, 1896, that it did on December 5, 1896. There was no error in admitting the testimony.

3. In their sixth assignment of error appellants complain of the action of the court in overruling their exceptions and in admitting in evidence exhibits A and B, attached to the deposition of R. M. Love. These exhibits purport to be copies of warrants drawn by R. W. Finley, Comptroller, on the tax collector of Marion County, commanding him to pay the amounts specified therein to John M. Harper, county treasurer of said county. The first warrant is dated September 1, 1895, and is for $3000. On the back thereof is a receipt of John M. Harper showing that he received from J. C. Hart, tax collector of Marion County, the amount of said warrant, during the months of March and April, 1896. The second exhibit was a copy of a warrant similarly drawn, dated September 1, 1896, for $2800. On the back of this is the receipt of John M. Harper as treasurer, showing that he received the amount thereof from J. C. Hart, tax collector of Marion County, between February 1, 1897, and March 23, 1897. Across the back of each of these warrants in red ink appears the words, "Marked paid.

troller."

Comp

The objection to the admission of these coupons or warrants and the indorsements thereon, was that they are immaterial and irrelevant, and that they purport to show the status of Harper's account in his capacity as county treasurer as taken from certain books, and it is not shown that said books were correctly kept, or that the witness knew of the transac

tion himself, but that he did not know who made said entries, and in order to render said exhibits, coupons and statements admissible, it ought to be first shown that the books from which the same were taken were correctly kept, and that the entries therein made are correct entries. They further objected on the ground that they tended to contradict the auditor's report made in this cause and filed in this court, and that no objection had been filed by the plaintiff to said report, and that the same did contradict said report, and that the evidence, after the case was closed upon the facts, came too late.

We are of the opinion the evidence is not subject to the exceptions made. The objection made does not comprehend an exception that the warrants show upon their face that they were drawn for the apportionment for the school year beginning September 1, 1901, and ending August 31, 1902, and not for the school year beginning September 1, 1895, and ending August 31, 1896, and the school year beginning September 1, 1896, and ending August 31, 1897, as contended by plaintiff.

However, if such exception had been made, we do not believe there was error in admitting the testimony. It seems the deposition of Love was taken in 1901 or 1902. In each of the certificates to the copies of the warrants appears the statement that the warrant is for the school fund for the year beginning September 1, 1901, and ending August 31, 1902. This is clearly a mistake. It arose presumably by the witness using the printed blanks for that year in preparing copies of the warrants. The first warrant having been drawn by R. W. Finley, Comptroller, and dated September 1, 1895, and paid in March or April, 1896, by J. C. Hart, tax collector of Marion County, to John M. Harper, county treasurer of Marion County, shows that it must have been for the school year beginning September 1, 1895, and ending August 31, 1896. For similar reasons the second warrant was for the year beginning September 1, 1896, and ending August 31, 1897.

It is further contended that the warrants and the indorsements thereon are not admissible in evidence because it is not shown that they are correct, and it is shown that the witness Love had no personal knowledge of the facts. These warrants and the indorsements thereon were kept by the Comptroller in the performance of duties imposed upon him by law, and became archives of his office, and it was competent for him to testify in reference thereto and to furnish certified copies thereof, and such certified copies were admissible in evidence. For the same reasons there was no error in admitting in evidence the statement of the account of John M. Harper, as county treasurer, kept in the office of the State Treasurer and certified to by him as correct. There was no error in instructing a verdict, the evidence of the defalcation and amount thereof, as shown by the auditor's report, being undisputed.

The assignments not discussed were not believed to be meritorious, and are overruled.

The judgment is affirmed.

Vol. 33 Civil-42

Affirmed.

DELAWARE WESTERN CONSTRUCTION COMPANY ET AL. V. FARMERS AND MERCHANTS NATIONAL BANK OF GILMER.

Decided December 5, 1903.

1.-Citation-Stating Names of Parties.

In an action against two defendants a citation naming but one of them as the defendant in the case is fatally defective and will not support a judgment by default.

2.-Same-Stating Cause of Action.

Where a citation, issued to a defendant residing out of the county, and accompanied by a certified copy of plaintiff's petition, as required in such cases by article 1215, Revised Statutes, does not contain a statement of the nature of plaintiff's demand, but in lieu thereof says, "For cause of action reference is here made to the certified copy of plaintiff's original petition hereto attached," the citation is defective and will not support a judgment by default.

Error from the County Court of Upshur. Tried below before Hon. M. B. Brigg.

Barnwell & Eberhart, for plaintiffs in error.

Warren & Briggs, for defendant in error.

BOOKHOUT, ASSOCIATE JUSTICE.-This suit was filed by the defendant in error in the County Court of Upshur County, Texas, against the plaintiffs in error on the 30th day of October, 1902, on a joint note alleged to have been given by them to said bank on the 24th day of January, 1902, said note being for $1000, and became due and payable sixty days after date. Citations issued to defendants to Harrison County, and were served on the 6th day of October. Defendants did not answer in said cause, and on the 18th day of November, 1902, judgment was rendered by default against both of them. Defendants have prosecuted a writ of error.

The first assignment of error reads: "The court erred in rendering judgment by default against these defendants, because it affirmatively appears from the record herein that the citations served upon them are fatally defective and will not support a judgment by default for the following reasons: (1) Because said citations served upon defendants did not contain the names of both of these defendants, but named only the Delaware Construction Company as defendants. (2) Because said citations wholly failed to state the nature of plaintiff's demand, but simply referred to plaintiff's petition for such statement; the only attempt to comply with the requirement in said citations being in words as follows: For cause of action reference is here made to the certified copy of plaintiff's original petition hereto attached.""

Omitting the formal parts, the citation served on the Delaware Construction Company reads as follows: "You are hereby commanded to summon the Delaware Western Construction Company, by delivering to its president, L. E. Walker, a copy of this citation, to be and ap

pear before the honorable County Court of Upshur County, Texas, at the next regular term thereof, to be holden at the courthouse in Gilmer, Texas, on the 3d Monday in November, 1902, then and there to answer the plaintiff's petition filed in a suit in said court on the 30th day of October, 1902, wherein the Farmers and Merchants National Bank of Gilmer is plaintiff and the Delaware Western Construction Company is defendant. File number of said suit being No. 547. The nature of plaintiff's demand is as follows, to wit: For cause of action reference is here made to the certified copy of plaintiff's original petition hereto attached."

The citation served on L. E. Walker (omitting formal parts) reads as follows: "You are hereby commanded to summon L. E. Walker to be and appear before the honorable County Court of Upshur County, Texas, at the next regular term thereof, to be holden at the courthouse in Gilmer, Texas, on the 3d Monday in November, 1902, then and there to answer the plaintiff's petition filed in a suit in said court on the 30th day of October, 1902, wherein the Farmers and Merchants National Bank of Gilmer is plaintiff and the Delaware Western Construction Company is defendant. File number of said suit being No. 547. For cause of action reference is here made to the certified copy of plaintiff's original petition hereto attached."

A copy of plaintiff's petition was served on each of the defendants. L. E. Walker is not named as a defendant in either citation, but in both the Delaware Western Construction Company is named as the only defendant.

The first question presented is, will a citation which does not comply with the statute, in that it does not state the names of the parties to the suit, support a judgment by default? It has been repeatedly held that such a citation is fatally defective and will not authorize a judgment by default. Burleson v. Henderson, 4 Texas, 49; Norvell v. Garthwait, 25 Texas, 584; Battle v. Eddy, 31 Texas, 368; Crosby v. Lum, 35 Texas, 41; Rogers v. Green, 33 Texas, 662; Anderson v. Brown, 16 Texas, 555; Owsley v. Bank, 1 Posey U. C., 95, 97; Heath v. Praley, 50 Texas, 209; Durham v. Betterton, 79 Texas, 223; Pruitt v. State, 92 Texas, 434.

The next question raised is, were the citations defective in failing to state the nature of plaintiff's demand? The statute names this as one of the requirements of a citation. Rev. Stats., art. 1214. It is held that the provisions of the statute in this respect are mandatory and there must be a substantial compliance therewith. Pruitt v. State, 92

Texas, 435.

The citation in question makes no statement whatever of the nature of plaintiff's demand, but refers to "the certified copy of the petition hereto attached." The copy of the petition accompanying the citation is no part of the citation. Where the defendant, as in this case, lives out of the county, the statute requires a certified copy of the petition to accompany the citation, and it was to comply with this statute that the copy of the petition was attached to the citation. Rev. Stats., art. 1215.