Brown v. Robertson

28 Tex. 555 | Tex. | 1866

Moore, C. J.

—The return of the sheriff on the citation to Mrs. Parmelia Brown does not show with sufficient certainty that it was served upon her to sustain the judgment taken upon it by default. The sheriff is required to execute the citation by delivering to the party upon whom he is directed to serve it a copy of the writ, and he must by his return show the time and manner of serving the writ. It is therefore evident, that it must appear with reasonable certainty from the return of the sheriff" that the citation has been served on the party for whom it is intended. It would certainly be more satisfactory for the sheriff in all cases to state in his return, that the party upon whom he had served the citation was the defendant to whom it was directed, rather than for the court to be left to determine this from inference and deduction. It has, however, been usual to hold the return sufficient, if the sheriff state that he has delivered the copy of the citation and petition to a party of the same name with the defendant. In such cases it is the fair and reasonable conclusion, that the writ has been served upon the party for whom it was intended; and this inference has been stretched to the extent of sustaining returns when the initials of the Christian name, or the initials of the name preceding a surname of a party upon whom the citation is -served, are similar to those of the defendant named in the writ. But to sustain the present judgment, it would be necessary to go even a step beyond this. The sheriff is directed in the citation to summon Parmelia Brown, and he returns he has delivered a copy of the citation and certified copy of the petition to “ Mrs. Brown.” This, in our opinion, does not afford sufficient presumption of the identity of the person upon whom the citation has been served with the defendant named in the writ to warrant the judgment. The presumption and inferences to sustain returns not strictly formal have, in our judgment, been indulged to the utmost limit of propriety, and we are not disposed to extend them further than has been heretofore done.

The judgment directs the sale of the mortgaged property before an execution shall issue against the defendants liable on the note, and as it cannot be sustained, as we have seen, against Parmelia Brown, who is a party to the mortgage, it must be reversed as to all of the plaintiffs in error, although there was sufficient service upon the others.

The judgment is reversed, and the cause

Remanded.

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