At the time appellees' first motion for rehearing was under consideration, and the majority of the court indicated that they were disposed to overrule the motion on the ground discussed in the original opinion, I dissented, and expressed the grounds of my dissent in writing. Subsequently, Justice DUNKLIN receded from the contention that the plaintiffs' petition was bad as against a general demurrer, in so far as the $2,000 policy was concerned. As to a recovery on this policy, the judgment was reversed and remanded solely on the *Page 764 ground that the citation issued out of the district court was not returned to the clerk of the court, but to the attorney for plaintiffs, and was not returned to the custody of the clerk until several days after the judgment was entered. The evidence shows that the officer serving the process returned it by sending it to the plaintiffs' attorney, probably with attached thereto a draft for his fees. The attorney exhibited to the court before and at the time of the entry of the Judgment the citation showing due service and return thereof. It seems that the attorney for plaintiffs, after the entry of the judgment had been made, took the return of the citation, together with the other papers, probably for the purpose of preparing the judgment, to his office, and that such return was not left with the clerk of the court until several days later. There is nothing in the record to support the inference that the failure of the sheriff to return the citation directly to the clerk misled the counsel for defendant, or contributed to cause the failure of such counsel to file an answer. While the writer does not dissent from the authorities cited In the opinion on motion for rehearing as to the duty of a sheriff or constable in regard to making a "return" on the citation, nor as to the fact that the clerk is the proper custodian of all court papers, yet we find no statutory authority requiring the filing of returns by the clerk. In fact, this court has held, in an opinion by Justice Dunklin, in Cloyes et al. v. Philip et al., 149 S.W. 549, that, there being no statute specifically requiring the clerk to indorse his file mark on a citation after its return, and the citation being regarded as filed, as a matter of law, when returned to the clerk's custody, that it was immaterial that there was no indorsement of filing by the clerk thereon. See Lessing v. Gilbert, 8 Tex. Civ. App. 174, 27 S.W. 751. Every lawyer and judge knows that attorneys of record are permitted to temporarily withdraw from the clerk's manual custody any papers in a case, when necessary for the preparation of further pleadings, or for the preparation of his brief, etc. The judgment recites that the court was aware that service was affected, and in fact that citation was before the court at the time of the entry of the judgment. There is no question as to the service upon the appellant company, and the trial court in his findings held that such service was had in due time, and that no good reason was shown for the failure on the part of defendant to file an answer before appearance day In Lessing v. Gilbert, supra, it is said:
"In the absence of a statement of facts, it would be presumed that all evidence necessary to authorize the judgment was before the court. It should be presumed in this case that the `citation' authorizing the judgment was exhibited to the court before judgment. The fact that it was not marked `Filed' until afterwards would only indicate a clerical omission, which would not affect the validity of the judgment. Callison v. Autry, 4 Tex. 371."
The writer is of the opinion that the judgment as to the $2,000 policy, especially as to the face value of the policy and interest, should not be reversed, but should be affirmed. Nor does the writer think that the allegation in the petition that plaintiffs' attorney "wrote the Missouri State Life Insurance Company, St. Louis, Mo., a letter informing said company of the death of the said Elmus H. Rhyne, and asked that payment be made under the provisions of the said two policies executed by said company as hereinbefore alleged, and requested that proof of death be duly forwarded unto these plaintiffs," makes the petition bad as against a general demurrer. The petition further alleges that:
"These plaintiffs would represent that more than 60 days have elapsed since request was made as hereinbefore alleged, and that no response has been received whatsoever from said company as to whether or not payment under the terms of said policies would be paid, or refused, and that by reason of the company's negligence or failure to make payment under said policies in accordance with said request," etc.
The writer believes that the failure of the petition to allege that the letter was properly addressed to the insurance company, and properly stamped and mailed, is a defect against which a special exception should have been sustained, but that the petition is not bad as against a general demurrer.
For the reasons stated, the writer is of the opinion that at least the judgment as to the face value and interest on the $2,000 policy should be affirmed. He is not thoroughly satisfied that the plaintiff is not entitled to recover the penalty and attorney's fee on this policy; nor is he thoroughly satisfied that the judgment as to the $3,000 policy should be reversed. As to the latter matter, however, he is inclined to agree with the majority as to the disposition of the appeal. *Page 765