22 Tex. 130 | Tex. | 1858
The plaintiff in error seeks to reverse the judgment of the court below, on the ground, that the return of the sheriff does not show that the citation was served on the defendant in the court below, in the manner required by law.
The return of the sheriff was as follows : “ Executed August •“10th, 1857, by serving the defendant with a time copy of this “writ, and a certified coj>y of plaintiff’s petition.” The court below rendered a judgment by default.
The question, whether a sheriff’s return be sufficient or not, •as an original one, is without any difficulty; but it has become embarrassing to this court, from the fact that we have not uniformly -insisted upon a strict compliance with the requirements of the statutes upon the subject. It is the settled practice of the court, to inquire into all errors disclosed by the record, when delay is suggested by the appellee. Yet it must be admitted, that where the court, upon suggestion •of delay, has assumed to notice all errors disclosed by the record, the returns of sheriffs, in the very language of that now before us, have been suffered to pass without notice, and, by implication, have been acknowledged to be sufficient. It is true that, in the earlier decisions of the court, whenever ' questions were made as to the sufficiency of returns, the court refused to sustain such as were not in conformity with the requirements of the statutes. But more recently, greater laxity has crept into our decisions and practice, until the •question of the sufficiency of a sheriff’s return, has become matter for grave discussion. In full view of the previous decisions of this court, and of the temporary embarrassment and delays that will result, we think it necessary to lay the axe to the root of the evil, and refuse any longer to recog
It is our purpose only to say, that our statutes point out-the manner in which service shall be made, and require the sheriff to state fully the time and manner of the service ; and to declare the resolution of the court, to insist, in future, upon a strict compliance with the provisions of the law.
Art. 679, Hart. Dig., declares the manner in which service shall be made. Art. 811 requires, that “the return of the “sheriff, or other officer, shall be made in writing, on the “back of the process, or attached thereto, stating fully the “time and manner of service; and shall be signed by him officially.”
Art. 679 requires, that “the sheriff or other officer, receiving “any process, shall endorse thereon the day on which he received it, and shall execute the same, where not otherwise “directed by the writ or citation, by delivering to the party “or parties, in person, upon whom he is required to serve “it, a copy thereof, and a copy of the petition accompanying “it,” &c.
The return, in the case before us, states that the writ was executed by serving the defendant with a copy, &c. This is not stating fully the manner of the service. The return does not show that the copy of the writ and petition were delivered to the defendant in person. It leaves the manner in which the service
We are of opinion that the return is not sufficient. These views were all expressed by this court, (though not in reference to the same kind of return,) in the case of Underhill v. Lockett, 20 Tex. Rep. 130. We only reiterate them, in order that there may be no misunderstanding of what the practice of the court will be for the future. We will require the return to show, that copies of the writ and petition, were delivered to the party upon whom the officer is required to serve them. It is an easy matter for the parties interested, before asking the courts to render judgment by default, to look to the return; and if it be not in proper form, in almost every case, the officer who made the return, can be brought into court to amend it.
The case of Bartlett and others v. Winkler, 15 Tex. 515, is overruled. The judgment in this case is reversed, and the cause remanded.
Reversed and remanded.