O'Leary v. Durant

Walker, Associate Justice. The return of the sheriff to the citation by publication did not “show when the citation was executed and the manner thereof.” (Rev. Stats., art. 1238.) [410] The time of publication could, not have expired at the return day—the beginning of the term of court after issuance. This did not affect its validity as citation to the succeeding term. (Hall v. Baker, 23 Texas, 263.) Opinion delivered March 27, 1888. The interests of the defendants cited by publication ware conflicting. Doubtless this was not known to the trial judge when he appointed an attorney. When the conflict became apparent the attorney should have been relieved of part of the duty assigned him, and another or others appointed. While it was necessary to the decree of partition to ascertain that all the parties interested be parties, and to this end to ascertain the owners of the land sought to be partitioned, still, to go further, and by formal decree without pleadings to adjudicate between the interests of defendants, was irregular. For the error in the defective return of the sheriff, the judgment is reversed and the cause remanded. Reversed and remanded.