Brown v. E. Marqueze & Co.

Coke, J. This is a judgment by default, rendered in the district court of Rusk county against John G. Brown and Thomas A. Brown. The plaintiff in error, John G. Brown, brings the case here by writ of error, and assigns as error, for which the judgment should be reversed, that said judgment was rendered without citation or notice served on him. Upon an inspection of the record, we are of opinion that the assignment is well taken. There is no evidence in the record that John G. Brown has been served with citation, or in any manner notified of the pendency of the suit. The return of the sheriff shows that Thomas A. Brown and John G. Brow were served with process. Brow and Brown are not the same names, nor are they idem sonans; they may be different persons, for all that the record shows to the contrary. In order to support a judgment by default the record should show affirmatively, and with reasonable certainty, that the party against whom the judgment is rendered has been brought within the jurisdiction of the [79] court by proper service of process on Mm. That is not shown by the record in this case. The writ of error is prosecuted by only one of the parties defendants in the judgment; but, as the judgment is entire, it must be reversed as to both. Judgment reversed, and cause Remanded.