Ryan v. Martin

29 Tex. 412

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

Opinion

Coke, J.

case is submitted on a suggestion of delay. The defendant in the court below failed to appear, and judgment was rendered against him by default. Hpon an inspection of the record, we find that the return of the sheriff upon the citation to the defendant shows an insufficient service, which is fatal to the judgment.

The return on the writ is in these words: “Deceived March 10th, 1859, and executed May the 23d, 1859, by serving William Eyan with a true copy of this writ and accompanying petition.” It is well settled, by repeated adjudications of this court, that such a return, not showing the manner of service, is not in conformity to the requirements of the statute, and is not a sufficient basis to support a judgment by default.

An order of court granting leave to the sheriff to amend his return appears in the record, but no amendment appears to have been made. If in fact the writ was served in the mode required by the statute, the facts constituting the service could have been distinctly stated in an amended return, under the leave granted, and the defective return would have been cured. Having declined or failed to pursue this course, the presumption arises, that a proper and correct return could not have been made consistent with the facts. However that may be, the return on the writ is manifestly and fatally defective; and, by reason of its insufficiency, the judgment is erroneous.

Judgment reversed, and cause remanded for further proceedings.

Reversed and remanded.