Blossman v. Letchford, 17 Tex. 647

Blossman v. Letchford

17 Tex. 647 | Tex. | 1856

Hemphill, Ch. J.

Richard D. Blossom, the defendant below, was alleged in the petition to be a non-resident of the . State. His property was attached, and he was ordered to be cited by publication. Various errors have been assigned, but *649the only one insisted upon is, that there was no legal service of the citation. This was ordered in the process itself, to be published in the Lone Star and Texas Ranger, a newspaper published in the town of Washington, for four successive weeks before the return day : and the Sheriff returns that he executed the same by ordering the brief statement and writ to be published four successive weeks in the Lone Star and Texas Ranger, a newspaper published, &c., before the return day thereof. Attached to this return was an affidavit of Joseph Lancaster before a Notary Public, that he was the publisher <of the Lone Star, &c., and that he published the citation notice for four successive weeks, <fcc.

The return of the Sheriff was clearly insufficient. His return must show fully the time and manner of the service, and must be signed by him officially. Nor is the defect cured by the affidavit of Lancaster, which is not adopted or made a part of the return of the officer. ' The case comes clearly within the principle of the decision in Goodlove v. Gray. (7 Tex. R. 483.)

The Sheriff, in the case now before us, had leave to amend his return ; and had this amendment been made, the deficiency would have been supplied. But no such amendment appears in the transcript. True, there is a recital in the judgment, that it appeared to the Court that service by publication had been perfected, as required by law. But this is insufficient, at least on error or appeal. The return of the Sheriff must show within itself, that there had been legal service of the process. Had there been any disability by death or otherwise, preventing an amendment of the return by the officer, "extraneous proof of service would have been admissible.

We are of opinion that there being no legal service of process, or no such evidence of it as is required by law, there was error in proceeding to judgment, and that the same be reversed and cause remanded. (Hart. Dig. Art. 679, 811, 2894, 813.)

•Reversed and remanded.