Whitaker v. Fitch

25 Tex. 308

• Court: Texas Supreme Court
• Decided: October 15, 1860
• Status: Published

Opinion

Kell, J.

—The service of the original citation in this cause reads as follows: “Gameto hand August 27,1859, and executed by delivering to the within named' defendant, Samuel Whitaker, a true copy of citation, and a certified copy of plaintiff’s petition.” This was signed officially by the sheriff.

There was judgment for the plaintiff by default.

It is alleged as error, that the return on the citation does not show when the service was made. We are of opinion that the service was not sufficient to authorize the judgment, and for the reason indicated. The statute requires that “ the sheriff shall indorse on all process and precepts coming to his hands the day on which he received them, the manner in which he executed them, and the day when he executed them,” &c. To authorize a judgment by default, the return on the citation should show a compliance with the statute, and one of the plain requirements of the statute is, that the return shall show the day when the writ was served.

The judgment is reversed, and the cause

■Kemanded.