Allen v. Wyser
Texas Supreme Court
Error from Walker. The case was tried before Hon. Peter W. Gray, one of the district judges. Wyser sued Allen “as a non-resident,” on the 16th February, 1857, on sundry small notes and accounts, amounting to $767 25, and only prayed for process and judgment, but not for an attachment, or sequestration, or other matter in rem.
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Error from Walker. The case was tried before Hon. Peter W. Gray, one of the district judges. Wyser sued Allen “as a non-resident,” on the 16th February, 1857, on sundry small notes and accounts, amounting to $767 25, and only prayed for process and judgment, but not for an attachment, or sequestration, or other matter in rem. The plaintiff annexed his affidavit, that “ the defendant in said petition is absent from the State of Texas, and that I believe he is not a resident of said State.” The clerk issued his writ, which, after reciting the affidavit, ran thus : “ These are therefore to…
1Opinion of the CourtCoke, J.
This is a judgment by default. A proper predicate was laid by the affidavit of the plaintiff for service of process on the defendant by publication. The writ issued in the case is defective in this, that it does not require the sheriff to make publication for four successive weeks, as required by the statute. The return of the sheriff states that he executed the writ by having it published in the Huntsville Item, “on the 16th day of September, 1857,” which is manifestly insufficient. Publication of the process should have been made for four successive weeks previous to the return day, in a…
2Cases cited2 opinions
- Blossman v. LetchfordTexas Supreme Court · 1856
- Goodlove v. GrayTexas Supreme Court · 1852
3Cited by4 opinions
- Mabee v. McDonaldTexas Supreme Court · 1915
- Bowden v. CrowCourt of Appeals of Texas · 1893
- Eubank v. BostickCourt of Appeals of Texas · 1917
- Villegas v. Shane-Michael Optical CompanyCourt of Appeals of Texas · 1969