Booth v. Holmes

2 Posey 232

Opinion

Opinion.— Said service against Booth must be held insufficient under decisions made by the supreme court in Henderson v. Pugh, 46 Tex., 211; Brown v. Robertson, 28 Tex., 555, and Brown v. Marquez, 30 Tex., 77. Also Graves v. Robertson, 22 Tex., 132, and Willie v. Thomas, 22 Tex., 175. It is held in Faver v. Robinson, 46 Tex., 204, that a petition, citation and service on John B. Pavers will not support a judgment by default against John B. Paver. The mere misspelling of a defendant’s name by the sheriff in his return, where the misspelt name is idem sonans with the true name, does not conflict with the rule of certainty. Townsend v. Ratcliff, 50 Tex., 148. The defect in the service being apparent upon the record, the objection may be raised in the supreme court by writ of error. 4 Tex., 49; 2 Tex., 422; 25 Tex., 583, and 28 Tex., 368. The reversal as to one of the defendants has the effect to reverse a judgment wdiieh is entire as to all defendants, although rendered by default, when one or more parties has not appealed. Burleson v. Henderson, 4 Tex., 49; Neil v. Baker, 28 Tex., 345.

Beversed and remanded.