Allen v. Wyser

• Decision Date: 31 January 1867
• Citation: Allen v. Wyser, 29 Tex. 150 (Tex. 1867)
• Parties: BENJAMIN D. ALLEN v. GUSTAVUS A. WYSER.
• Court: Texas Supreme Court

29 Tex. 150

BENJAMIN D. ALLEN

v.GUSTAVUS A. WYSER.

Supreme Court of Texas.

January, 1867.

The 16th section of the act of 1848“concerning proceedings in the district court”(before amended), read as follows: “If the plaintiff, his agent, or attorney, shall, at the time of instituting his suit, or at any time during the progress thereof, make affidavit before the clerk of the court that the defendant is not a resident of this state, or that he is absent from this state, or that he is a transient person, or that his residence is unknown to the affiant, the clerk of the court shall issue a citation to the proper officer (which citation shall contain a brief statement of the cause of action), commanding the said officer to summon the defendant, by making publication of the citation in some newspaper published in the county where the writ 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.”Pas.Dig. art. 25, note 233.Although the suit was to recover a debt, and in no way a proceeding in rem,the court rendered judgment by default upon service by publication: Held, that in suits by publication the plaintiff is held to a strict compliance with every requirement of the law.7 Tex. 484;17 Tex. 649.

[NOTE.--This section has now been amended to read as follows: The 14th section of an act entitled “An act concerning proceedings in the district court,” passed March 16, 1848, be, and the same is, hereby amended, so as to read as follows: “When any property, of any kind, in this state, may have been granted, or may have accrued, to the heirs, as such, of any deceased person, any person having a claim against them relative to such property, if their names be unknown to him, may bring his action against them, their heirs, or legal representatives, as the heirs of their ancestor, describing them by his name; and if the plaintiff, his agent, or attorney, shall, at the time of instituting his suit, or at any time during the progress thereof, make affidavit that the names of the heirs, their successors, or legal representatives, or names of the heirs, successors, or legal representatives of any deceased person, party to such suit, are unknown to him, the clerk of the court shall issue a like writ, directed to the proper officer, commanding him to summon such heirs, successors, or legal representatives whose names are unknown, giving the name of their ancestor, by making publication of the citation in some newspaper published in the county where the writ issued, if there be one so published, but, if not, then in a newspaper of the nearest county in which one is published, for eight weeks previous to the return day of such process; when such notice is given, and no appearance is entered within the time allowed for pleading, the court shall appoint an attorney to defend in behalf of such heirs, successors, and legal representatives, and proceed as in other cases; and the court shall allow such attorney a reasonable compensation for his services, and enter judgment therefor, as in other cases, which judgment shall be a lien on the property in controversy.”This act took effect from passage, November 9, 1866.]

ERROR from Walker.The case was tried before Hon. PETER W. GRAY, one of the district judges.

Wyser sued Allen “as a non-resident,” on the 16th February, 1857, on sundry small notes and accounts, amounting to $767.25, and only prayed for process and judgment, but not for an attachment, or sequestration, or other matter in rem.The plaintiff annexed his affidavit, that “the defendant in said petition is absent from the state of Texas, and that I believe he is not a resident of said state.”The clerk issued his writ, which, after reciting the affidavit, ran thus: “These are therefore to command you to summon the said Benjamin D. Allen, by publication of this citation in some newspaper published in the county of Walker, in said state, if there be one, but if there be none, then in a newspaper published in the nearest...