John Chaffee, Bro. & Son v. F. B. Bryan & Co.

Opinion by White, P. J. § 7 7 O. Service of citation by publication; requisites of; return of service; what it must shoiv. The judgment in this case was rendered against plaintiff in error by de [423] fault on what purported to be service by publication. The sheriff’s return is as follows: “ Came to hand same day issued, and executed by publishing this citation for four successive weeks in the Dallas Herald, a weekly paper of Dallas county, Texas, a copy of which is hereto attached.” This citation was issued on the 5th day of January, 1876. The petition stated the residence of plaintiff in error (defendants below) to be in the state of New York. The law then in force [Gen. Laws 1875, p. 170] required that the citation should be published “for four successive weeks prior to the sitting of the court.” And also, “the person publishing such notice shall make an affidavit showing the length of time he published the same, and the return of the officer making such service must show how he executed the same.” The record does not disclose any affidavit of the publisher of the newspaper as to the time the publication was made. In ex parte proceedings like this, in which the defendant has not had actual notice of the pendency of the suit, the plaintiff will be held to a strict compliance with every essential requisite of the law, and more especially is this the case in the proceedings by and through which the court acquires jurisdiction of the person of a non-resident defendant. The sheriff’s return in such cases must state all the facts necessary to show that the writ had been executed according to the terms of the law. The sheriff’s return in this case does not show when the publication was made, nor that it was made “for four successive weeks prior to the sitting of the court.” The objection to the service and return is well taken. [Goodlove v. Gray, 7 Tex. 484; Blossman v. Letchford, 17 Tex. 649; Allen v. Wyser, 29 Tex. 153; Lyon v. Paschal, 45 Tex. 436.] § 771. Affidavit of publisher indispensable in service of citation by publication. The affidavit of the publisher, •showing the length of time the publication had been made, was an indispensable requisite to obtain service under the law then in force. As said by the court in [424] Hewitt v. Thomas, 46 Tex. 235: “This statute is imperative, that the affidavit shall be made, and whilst it does not in terms require that it be filed with the papers of the case, we think the evident meaning is, that it must appear from the record that the affidavit was made.” [Moore v. Rice, 51 Tex. 295.] [Note.— The publisher's affidavit is not now required. See the requisites.of th& officer’s return, R. S. 1238; § 419, ante, p. 184.] January 22, 1881. § 772. Statement of facts must be filed where serviceis by publication, etc. The record does not show that the court below made out and incorporated with the record of the case a statement of the facts proven upon the trial, and upon which the judgment was founded. It-is well settled that, in cases like the present, the statement is an essential requirement of the law. [McFadden v. Lockhart, 7 Tex. 575; Davis v. Davis, 24 Tex. 187; Hewitt v. Thomas, 46 Tex. 234.] [Note.— See R. S. 1345, upon this subject.] Eeversed and remanded.