Arnold v. Scott , 39 Tex. 378 ( 1873 )

McAdoo, J.

In cases where the validity of the acts of an officer who signs his name as “ deputy sheriff,” without attesting in the name of the principal sheriff under whom he acts, have been drawn in question collaterally, this court has held that such signature of the officer was sufficient. (Miller v. Alexander, 13 Texas, 607.) We find no cases, however, where this ruling has been held in a direct proceeding, where such signature is held good.

In Jordan v. Terry (33 Texas, 680), Judge Walker, in delivering the opinion of the court, says: “ The service of the citation in error is defective. When any ministerial act is performed by a deputy sheriff, he should set -Jorth for whom he acts as deputy, and for what county.”

In Graves v. Robertson, 22 Texas, 130, Judge Bell says: “It is true that in the earlier decisions of the •court, whenever questions were made as to the sufficiency ■of the returns, the court refused to sustain such as were not in conformity with the requirements of the statute. But more recently greater laxity has crept into our de•cisions and practice, until the question of sufficiency of a sheriff’s return has become matter for grave discussion. In full view of the previous decisions of this court, and ■ of the temporary embarrassments and delays that will re- ■ Sult, we think it necessary to lay the ax to the root of the evil, and refuse any longer to recognize any return as sufficient that does not show a compliance with the requirements of the statute.”

In the case of Roberts v. Stockslager, 4 Texas, 307, Chief Justice Hemphill asserted the true rule on „ this subject. In that case it is said: “ How far presumption would, in a collateral action, supply a return where altogether wanting, or aid one which is defective, need not be inquired into; and it will be understood that we do not intend this decision shall affect those cases in which returns are brought in question collaterally. Hor do we mean to interfere with decisions of the court which relate to cases where parties have appeared in court, either in person or by attorney, and have proceeded without questioning the sufficiency of the return or of the service.”

Although the case above quoted from did not involve ' the immediate question—that of the signature of the offi- ■ cer making the service—yet the reasoning in that case • applies as well to this.

It was in accordance with that rule that the decision in ;the case of Jordan v. Terry was framed.

This is a case where judgment was taken by default. The service was defective in that the service purports to have been executed by a deputy sheriff who did not set. forth for whom he acted as deputy.

The judgment is reversed and the cause remanded.

EeVERSED AND REMANDED.