Allen v. Wyser

29 Tex. 150

• Court: Texas Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Coke, J.

This is a judgment by default. A proper predicate was laid by the affidavit of the plaintiff for service of process on the defendant by publication. The writ issued in the case is defective in this, that it does not require the sheriff to make publication for four successive weeks, as required by the statute. The return of the sheriff states that he executed the writ by having it published in the Huntsville Item, “on the 16th day of September, 1857,” which is manifestly insufficient. Publication of the process should have been made for four successive weeks previous to the return day, in a newspaper published in Walker county, and if there was no newspaper published in that county, then in the nearest county where a newspaper was published. (O. & W. Dig., Art. 418;) [Paschal’s Dig., Art. 25, Note 233.] The return of the sheriff should have stated all the facts necessary to show that the writ had been executed in conformity to the requirements of the law. In ex parte proceedings of this character, when the defendant has not had actual notice of the suit, the plaintiff must be held to a strict compliance with every essential requirement of the law. (Goodlove v. Gray, 7 Tex., 484; Blossman v. Letchford, 17 Tex., 649.)

The return of the sheriff is not in conformity to law. It does not appear from the record that the defendant has been duly served with process. The judgment must, therefore, be reversed, and the cause remanded for further proceedings.

Ordered accordingly.