Middleton v. State , 11 Tex. 255 ( 1854 )

Wheeler, J.

The ground on which a reversal of the judgment is sought, is, that the defendant was not legally served with process.

The law prescribes that, when not otherwise directed, service of the writ shall be by delivering to the party a copy; and it is made the duty of the officer, in his return, to state the manner in which he executed the process. (Hart. Dig. Art. 679, 2894.) It is evident that the law has not been complied with, in the present case. The return does not show service of process on the defendant, in the manner prescribed; without which, the judgment by default could not legally be rendered. (4 Tex. R. 307; 7 Id. 483.)

It is objected on the part of the appellee, that the assignment of errors brings in question only the fact of service, not the sufficiency of the return. But, to' determine the question of service, we necessarily look to the return; and it is only to the return that we can look to ascertain the fact. The assignment of errors brings in question the sufficiency of the evidence, afforded by the return, to establish the fact of service; that is, of course, of legal service. The sufficiency of the return, therefore, necessarily becomes the subject of revision. To authorize a judgment by default, it must appear by the return that the process was legally served upon the defendant. And because it does not so appear, in the present case, the judgment must be reversed and the cause remanded for further proceedings.

Reversed and remanded.