Barnett v. Tayler , 30 Tex. 453 ( 1867 )

Willie, J.

This action was brought by defendant in error against W. L. Barnett, the plaintiff in error, and 0. 0. Benham and P. L. Herron, upon a promissory note. A citation issued' for 0. 0. Benham, and was placed in the hands of the sheriff of Gonzales county, who returned it. “ Executed by delivering to the said defendant, William L. Barnett, in person, a certified copy of the plaintiff’s original petition or copy of this writ. The said defendant, 0. 0. Ben-ham, is not to be found in Gonzales county.” Service was duly had upon the defendant, Herron, and the suit having been dismissed as to 0. 0. Benham, not served, judgment was rendered against Barnett and Herron. Barnett alone prosecutes the writ of error upon the judgment, and assigns for error, that the judgment was rendered without any citation having been issued requiring him to appear and answer the petition. This exception to the judgment is well taken. The citation directed to the sheriff of Gonzales county only authorized him to summon the defendant, Benham, .and his service of the same upon Barnett was not a compliance with the requirements of the writ. It was a departure from the command contained therein. The copy which lie delivered to Barnett did not require the latter to appear and answer the petition, and his failure to do so did not place him in default. The judgment was erroneous, and must he reversed, and the cause remanded for further proceedings. The defendant,' Herron, does not prosecute the writ of error, but as he was merely an indorser of the note upon which the suit was brought, Barnett and Benham being the principals, and judgment by default was taken against him, the judgment must be reversed as to him also. (Houston v. Ward, 8 Tex., 124; Bayless v. Daniels, 8 Tex., 140.)