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: 169
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1875.] STEPHENSON v. T. & P. R. R. Co. G9
Opinion of the court.
need no special consideration. All of them are in effect
disposed of by what has been already said.
The motion to dismiss the writ of error is overruled.
The fourth assignment o[ errors is the only one which
it is necessary for us to consider for the proper disposal of
the case. The plaintiff in error was alleged, in the petition
filed in the District Court, to be a non-resident of the
State. IHe was cited by publication to appear and answer
the petition. No appearance, however, was made for him,
and a judgment by default was rendered against him at
the second term of the court after the institution of the
suit. When service is had by publication, the citation, says
the statute, "shall be published in some newspaper * * *
for four weeks previous to the return day of the same."
The record shows that the citation issued on the sixth of
September, 1871. The next ensuing term thereafter of
the District Court of Harrison county, as is judicially
known by us, commenced its session on Monday, the second
day of October, 1871. It is obvious, therefore, that
twenty-eight days did not intervene between the issuing of
the citation and its return day. Consequently it was impossible
for the citation to have been published four weeks,
as required by law, so as to have been returnable at that
term of the court, and thereby put the defendant in default
on his failure to appear and answer to the action at
the next succeeding term. The publication of the citation
in four issues of a weekly paper previous to the return
day, as seems to be supposed to be sufficient by counsel
for defendant in error, is not a compliance with the statute.
When a judgment is asked in an ex parte proceeding,
based on service by publication, there must be a strict
observance of all essential requirements of the law authorizing
it. (Hill v. Faison, 27 Tex., 431.)
The judgment is reversed and the cause remanded to
the District Court.
REVERSED AND REMANDED.
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Texas. Supreme Court. 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., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/177/: accessed November 18, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .