Special judgment was rendered against the defendant enforcing the lien for taxes on one hundred and twenty acres of land for the year 1877, the subsequent taxes having been paid. The land was sold on execution for three dollars, it being of the value of from two to three dollars per. acre. The judgment was for $6.18, when according to the prayer of the petition and the order of publication, it could not have exceeded $5.74. Because of this excess'of forty-four cents, the defendant learning of the sale, appeared by his agent at the same term at which the sale was made, and moved to set it aside, which motion was overruled. As the judgment was based upon constructive service, and was in excess of the relief asked, it was, to say the least, erroneous on the face of the record, and 'the defendant having made a timely motion, it should have been sustained.
The judgment overruling the motion is reversed and the cause remanded