Fitzhugh v. Hall , 28 Tex. 558 ( 1866 )

Moore, C. J.

—The return of the sheriff shows that the plaintiff in error, who was the defendant in the court below, was served on the 15th of March, 1860, with a citation, commanding him to appear and answer the petition filed against him at the next term of the District Court of Collin county, to be held on the third Monday of said month of March. From the calendar, it appears that the' spring term of said court for the year 1860 commenced its session on the 19th day of March. There had not, consequently, been, such service of the citation upon the plaintiff in error as to require his appearance at that term of the court. The judgment rendered against him hy default is therefore erroneous, and must he reversed, that he may have an opportunity, if he desire to do so, of appearing and answering to the cause of action alleged against him.

The plaintiff’s objection to the manner of service of the citation is not well taken. The sheriff shows by his return that he “ executed” the citation “by leaving with the defendant, William Kitzhugh, in person, a copy,” &c. This is certainly tantamount to saying that he had executed it by delivering to the defendant in person a copy of the citation, &c. Neither the law nor any decision of this court requires the return to be made in the literal and precise language of the statute.

The judgment is reversed, and the cause remanded for further proceedings.

Reversed and Remanded.