Williams v. Downes

30 Tex. 51

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

Opinion

Willie, J.

Our statute makes it the duty of the sheriff" to indorse on all process and precepts coming to Ms hands the day on which he received them, the manner in which he executed them, and the day when he executed them, and to sign his return officially. (O. & W. Dig., Art. 1856.) Upon an examination of the writ in this case, directed to the sheriff for service on Bennett, we find that the return thereon does not show when it was received, or when service of the same was made. Every defendant against whom suit is brought to the district court is entitled to five full days’ notice thereof previous to the first day of the term to which it is returnable. The fact that such service was made at the proper time, and in the manner prescribed bylaw, should affirmatively appear by the sheriff’s indorsement, or it should be shown in the record that it was waived by the defendant. A judgment by default taken without such showing will be set aside by this court.

The judgment is reversed, and the cause

Remanded.