Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 153

1875.] KING v. GOODSON. 153
Opinion of the court.
TV. C. Loving, for plaintiffs in error.
Jones Henry, for defendants in error.
ROBERTS, CHIEF JUSTICE.-This is a judgment by default.
The return of the sheriff is not strictly correct, being liable
to the construction that one copy of the citation and petition
was served on both defendants. The statute requires
that the manner of the service should be plainly stated, and
(vhen this is done it will not require any intendment in its
favor to help it out, as must be indulged in this case to hold
the return to be sufficient. The return reads as follows:
" Came to hand September 30th, 1873, and executed same
day by handing J. B. King and John A. Pierce, in person,
a certified copy of plaintiffs' petition, together with a copy
of this citation, this October 1st, A. D. 1873."
Another objection to the judgment by default is in rendering
it for the enforcement of the vendor's lien, in accordance
with the amended petition filed during the term, of
which the defendants below had no notice. The amended
petition claims a vendor's lien for the one undivided half
of the lot for which the note sued on was given, and judgment
was rendered accordingly; whereas it is recited on
the face of the note, as set out in the original petition,
that it was given as the purchase money for two-thirds of
an undivided half interest in the said lot in the town of
Sulphur Springs.
This, possibly, may have been a mistake in drawing up
the amended petition and in entering the judgment; still
it is a substantial variance, by way of addition to the claim
in the original petition, and before judgment by default
should have been so rendered, notice should have been
given of the amendment to the defendants below. (Morrison
v. Walker, 22 Tex., 18, and cases there cited.)
Therefore the judgment must be reversed and the cause
remanded.
REVERSED AND REMANDED.