Lyon v. Paschal

Moore, Associate Justice. Where suit is brought against a non-resident, the statute directs that the defendant shall be summoned by malting publication of the citation (which shall contain a brief statement of the cause of action) in some newspaper published in the county where the writ is issued, if there be a newspaper published in said county, but if not, then in the nearest county where a newspaper is published, for four weeks previous to the return day of such process. The record in this case, if we can regard the copy of the citation and the return of the sheriff copied in the transcript as any part of it, shows that the sheriff did no more than to make, on the day on which the citation issued, a mere order for its publication. It has been repeatedly decided by this court that such a return does not show proper service of the citation, and will not warrant a judgment by default. (Blossman v. Letchford, 17 Tex., 649.) And if, in consideration of the fact stated in the certificate of the clerk, we discard from our consideration this part of the transcript as properly forming no part of it, then it contains nothing whatever to [437] show that the defendant had any notice of the suit against him, by publication or otherwise. The judgment entry does not even recite that there was any such service, if, indeed, any intendment or presumption of service could arise from such recital, when the judgment is tinder review on appeal or by writ of error. Unquestionably, then, the judgment was unauthorized. It is therefore reversed, and the cause is remanded. Reversed and remanded.