J. W. Hendon v. W. H. Pugh.
Service of citation.—The sheriff’s return on a citation to J. TV. Hendon, the defendant in this suit, was as follows: “Came to hand January 21, 1876, and executed same day by delivering to J. y. Hendon in person a true copy of the written citation, together with a certified copy of plaintiff’s original petition: ” Held, That it failed to show with reasonable certainty that the citation was served on the defendant in the suit, and no judgment by default could be rendered against the defendant.
*212Error from Hopkins. Tried below before the Hon. W. H. Andrews.
This was an action, brought by W. H. Pugh against J. W. Hendon, on two promissory notes, one payable to W. N. Pugh and the other payable to the order of W. N. Pugh, and to enforce a vendor’s lien on the land described in the petition. Judgment by default was rendered against plaintiff in error for the amount of the notes, and enforcing vendor’s lien, from which judgment a writ of error was prosecuted.
Payne & Putnam, for plaintiff in error.
There was no service authorizing a judgment by default. The return of citation must show that it was served upon the defendant. (Roberts v. Stockslager, 4 Tex., 307; Brown v. Marqueze, 30 Tex., 78; Wilson v. Johnson, 30 Tex., 499.) The return of the sheriff in this cause shows service upon J. N. Hendon, not J. W. Hendon.
King & Milam, for defendant in error.
Gould, Associate Justice.
The sheriff’s return on the citation for the defendant J. W. Hendon is as follows: “ Came to hand January 31,1876, and executed same day, by delivering to J. U. Hendon in. person a true copy of the within citation, together with a certified copy of plaintiff’s original petition.” This return fails to show, with reasonable certainty, that the citation was served on the defendant in the suit. (Brown v. Robertson, 28 Tex., 557.)
As the judgment by default was taken without a proper return on the citation showing service on the defendant, the judgment is reversed and the cause remanded.
Reversed and remanded.