Roberts v. Stockslager
| Decision Date | 31 December 1849 |
| Citation | 4 Tex. 307 |
| Parties | ROBERTS v. STOCKSLAGER. |
| Court | Texas Supreme Court |
The provisions of the statute as to the mode of service and the fullness of the return are as plain as they are imperative. They prescribe the mode by which the court acquires jurisdiction over the person of the defendant; and as this is necessary to give validity to its acts and judgment, the regulations on the subject should be strictly observed by the officers charged with the duty, and enforced by the tribunal before which the matters in controversy are to be determined. (Note 61.)
A return by the sheriff that he “left a copy of the writ and a true copy of the petition” is insufficient.
Where the return of the sheriff is insufficient, and judgment goes by default, the judgment is erroneous, and will be reversed on error, although the entry of the judgment recite that the defendant was legally served. But quere, whether the judgment would be treated as a nullity in a collateral proceeding. (Note 62.)
Error from Collin. The return of the sheriff was that he “left a copy of the writ and a true copy of the petition.” Judgment for the plaintiff by default.
Cravens, for plaintiff in error. The return of the sheriff shows that the process was served by leaving a copy; but with whom it was left nowhere appears. The judgment being by default, and nothing appearing upon the record to bring notice of the pendency of this suit home to the defendant, it must be reversed.
Everts, for defendant in error.
The judgment was rendered in this case by default, and it is assigned for error that the defendant had no notice of the pendency of the suit, a copy of the petition and citation not having been delivered to him, as required by the law.
The 14th section of the act to regulate proceedings in the District Courts directs the officer receiving process to execute the same, where not otherwise directed by the writ or citation, by delivering to the party or parties, in person, upon whom he is required to serve it, a copy thereof and a copy of the petition accompanying it, if there be one, if the party can be found. When the process directs other mode of service, it shall be executed according to the requirements of the process. (Acts of 1846, p. 368.) And by section 11 of the act concerning proceedings in District Courts (Laws of 1848, p. 106) the sheriff or other officer is required to state in writing on the back of the process, or attached thereto, the time and manner of the service, and to sign the same officially; and their duty as to the return of service is also especially enjoined by the 14th section of the act defining the office and duties of sheriffs. (Laws of 1846, p. 269.)
The return of the sheriff is that he left a copy of the writ and a true copy of the petition. This statement, without some additional facts as to the place or the person with whom the process was left, is unintelligible. In the petition for the writ of error the return of the sheriff, as there copied, shows that the copies were left at the house of the defendant, and this was probably the fact. It is one, however, which does not aid the defective service in this case, and if it did, it could not be noticed by the court, as the copy of the return certified by the clerk cannot be falsified or contradicted by the statement of the petition for the writ of error.
The provisions of the statute as to the mode of service and the fullness of the return are as plain as they are imperative. They cannot be mistaken, and the courts should not permit them to be disregarded. They prescribe the mode by which the court acquires jurisdiction over the person of the defendant; and as this is necessary to give validity to its acts and judgments, the regulations on the subject should be strictly observed by the officers charged with the duty, and enforced by the tribunal before which the matters in...
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