Blossman v. Letchford

• Decision Date: 01 January 1856
• Citation: 17 Tex. 647
• Parties: RICHARD D. BLOSSMAN v. WILLIAM H. LETCHFORD AND OTHERS.
• Court: Texas Supreme Court

17 Tex. 647

RICHARD D. BLOSSMAN

v.WILLIAM H. LETCHFORD AND OTHERS.

Supreme Court of Texas.

1856.

A return by the sheriff that he executed the citation for publication, by ordering the brief statement and writ to be published four successive weeks before the return day thereof, in a certain newspaper, accompanied by the affidavit of the publisher of the paper that publication thereof was made accordingly, is not sufficient; the fact of the publication, and the time and manner thereof, must be stated by the sheriff as of his own knowledge, in the return signed by him officially. [7 Tex. 484;29 Tex. 150.]

The sheriff, in the case now before us, had leave to amend his return; and had this amendment been made, the deficiency would have been supplied. But no such amendment appears in the transcript. True, there is a recital in the judgment that it appeared to the court that service by publication had been perfected, as required by law. But this is insufficient, at least on error or appeal. The return of the sheriff must show within itself that there had been legal service of the process.

Error from Brazos. Tried below before the Hon. Henry J. Jewett.

Judgment by default in the court below. No question was made in the court below as to the sufficiency of the sheriff's return of the citation. The “leave to amend the return” which was granted, was no doubt intended to cover a defect in the return of the attachment, which appeared to have been amended. The term “perfected” is used by the district courts, in this connection, to mean that it is then (at the time of entering judgment by default in publication cases) the next term of the court after that to which the citation was returnable; and such would seem to be the sense in which it is used in the statute. (Hart. Dig. art. 812.)

Alexander, for plaintiff in error. The return of the citation does not show affirmatively the facts essential to a valid return. It does not show that there was no newspaper published in Brazos county; that Washington county was the nearest county in which a newspaper was published; and that the citation and brief statement were actually published in a newspaper in that county for four successive specified weeks prior to the return day thereof. (Hart. Dig. arts. 679, 811, 2894 and 814; Goodlove v. Gray, 7 Tex. 483.)

J. Willie (for B. E. Tarver), for defendants in error. It might appear at first view that the service in this case was defective. The sheriff certifies that he commanded the citation to be published, etc., which would be insufficient of itself. But it seems that at the fall term, 1855, an order was made permitting the sheriff to amend his return, and the judgment recites that it “appeared to the court that service had been perfected,” which must be intended to mean that it appeared in a legal manner. The case does not come within the rule in Goodlove v. Gray, 7 Tex. 483, if...