This is an action of unlawful detainer, and was brought in a Justice Court of Medina County, by appellee against appellants. There was a judgment for appellee in that court, as well as in the District Court, to which an appeal was taken.
The defendants made a motion in the Justice Court to quash the citation, which was overruled. The motion was renewed in the District Court, but was again refused. The action of the District Court in this particular is assigned as error. The court did not err in its ruling. *Page 514 The object of a citation is merely to give the defendant notice of the suit that is brought against him. When he brings his case by appeal to the County or District Court, he is fully apprised of the nature of the action he is called upon to defend, and may make his defense de novo. It would therefore subserve no good purpose, but would cause unnecessary delay, to quash a citation which the justice ought to have quashed, and to require that the defendant be cited anew. It has accordingly been repeatedly decided that he is not entitled to such relief. Sheldon v. San Antonio, 25 Texas Sup., 177; Perry v. Rohde,20 Tex. 729; Boaz v. Paddock, 1 Ct. App. C. C., sec. 39.
It is also complained, that the court erred in overruling defendants' exceptions to the complaint. This assignment is equally untenable. The complaint describes the premises for the recovery of which the suit was brought, and alleges that the defendants entered under a written contract with plaintiff's vendor, in which they stipulated that they would yield possession of the demised premises upon the lessor's demand; that the plaintiff had bought the property of their landlord and had made a demand in writing of them for possession, and that it had been refused. The complaint, in our opinion, complies with the statute.
The complaint contained the following allegation: "That said defendants entered said premises by permission from Sam H. Davenport, former owner, heretofore, to-wit, on the _____ day of December, A.D. 1887, under stipulation that said premises should be restored to him on demand, which agreement was in writing," etc. The testimony showed that the defendants went upon the premises by the permission of the owner in the summer or autumn of 1887, and that the written agreement, though dated November 3, was really executed and delivered on the 3d day of December. The court permitted the plaintiff to read the agreement in evidence, over the objections of defendants. The ground of objection was, that there was a variance between the allegation and proof. The objection was not well taken. A party is not confined to proof of time alleged in his pleading. Although the execution of the writing and the entry were averred to have taken place at the same time, and it appeared that the defendants were in possession at the time the agreement was in fact signed and delivered, there was no substantial variance between the allegations and the evidence. The substantial fact was, that the defendants were in possession under the written lease, and it was unimportant whether they were there before its execution or not. Being in possession when the lease was executed, constructively they entered at that time.
There is no error in the judgment, and it is affirmed.
Affirmed.
Delivered May 6, 1892. *Page 515