| Tex. | Dec 15, 1849
The judgment was rendered in this case by default, and it is assigned for error that the defendant had no notice of the pendency of the suit, a copy of the petition and citation not having been delivered to‘him, as required by tlie law.
Tlie 14th section of the act to regulate proceedings in the District Courts directs 1he officer receiving process to execute the same, whore not otherwise directed by the writ or citation, by delivering i o the party or parties, in person, upon whom lie is. required to serve it, a copy thereof ami a copy of the petition accompanying it, if there, be one, if tlie party can bo found. Wlion tlie process directs other mode, of service, it shall be, executed according to the requirements of the process. (Acts of 184G, p. 3GS.) And by section 11 of the act concerning proceedings in District Courts (Laws of 1S4S, p. 10G) the sheriff' or other officer is required to stale in writing on the back of the process, or attached thereto, the time and manner of tlie service, and to sign tlie, same, officially; and their duty as to the, return of service is also especially enjoined by the 14th section of the act defining the office and duties of sheriffs. (Laws of 1840, p. 269.)
The return of the sheriff is that lie left a copy of the writ and a true copy of the petition. This statement, without some additional facts as to the place or the person with whom the process was left, is unintelligible. In the petition for the writ of error the return of the sheriff, as there copied, shows that tlie copies were left at the house of tlie defendant, and this was probably the fact. Id is one, however, which does not aid the defective service in this ease, aucl if
The provisions of the statute as to the mode of service and the fullness of the return are as plain as they are imperative. They cannot be mistaken, and the courts should not permit them to be disregarded. They prescribe the mode by which tlio court acquires jurisdiction over the person of the defendant; and as this is necessary to give validity to its acts and judgments, the regulations on the subject should be strictly observed -by the officers charged with the duty, and enforced by the tribunal before which the matters in controversy are to be determined. The fact that the defendant has notice in the form prescribed by law is vitally essential to the jurisdiction of the court; and where the party does not appear, and thus waives defects of notice, it is the duty of the court to ascertain, before proceeding in the adjudication, whether the defendant lias been legally brought within judicial cognizance in relation to the subject-matter then pending before the court. These remarks in relation to the duty of the courts are intended for courts generally, and have no more application to the tribunal where this cause was decided than to the other courts of the country. Every citizen is shielded by tile Constitution from being deprived of life, liberty, property, or privileges, outlawed, exiled, or in any manlier disfranchised, except by the due. course of the law of the land.
This law requires that a copy of the writ and petition should be delivered to the defendant in person when not otherwise, directed in the writ, and without thU his rights cannot he adjudicated or divested. It is, says Chief Justice Bronson, á cardinal principle in the administration of justice that no man can he condemned or divested of his rights until he has had the opportunity of being heard. He. must, either by serving process, appointing a guardian, publishing a notice, or in some other way, be brought into court; and if judgment is rendered against him before that is done,' the proceedings will he as utterly void as though the court, had undertaken to act where the subject-matter was not witliin'its cognizance. (1 Hill R., 139.)
It, is not necessary for the decision of this case to determine that the judgment is lit tori y void, and might in a collateral action he treated as a nullity. noiv far presumption wouldj in such action, supply a return where altogether wanting, or aid one which is defective, need not be inquired into, as the question which is made in this proceeding is in relation to the erroneousness, not the invalidity of the judgment.
It. is stated in the judgment that the defendant was duly summoned. This is contradicted by the return of the sherii! showing that there was no summons, or none made in conformity with law.
IIow far the return of title sherii! might be aided by the entry in the judgment, were, it. impeached as absolutely void, might he made a question ; but upon error the statement of the sheriff must be taken as showing truly and fully the facts in relation .to the service, and that the deduction from these that the summons was duly made is erroneous.
The action of the court, predicated in part on this assumption, cannot he maintained, and it is therefore ordered that the judgment in this case here-versed and remanded, and a new citation is ordered to issue.
Ordered accordingly.