Middleton v. State
Texas Supreme Court
Error from Austin. An interlocutory judgment was entered against the plaintiff in error, for his failure to attend, as a witness; and a scire facias was issued to notify him to show cause why the judgment should not be made final.
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Error from Austin. An interlocutory judgment was entered against the plaintiff in error, for his failure to attend, as a witness; and a scire facias was issued to notify him to show cause why the judgment should not be made final. The writ was returned by the Sheriff “Executed, by summoning Thomas “ Middleton to be at the District Court in Austin county, at “ its Fall Term, 1852.” The defendant in the scire facias failing to appear, judgment by default final was rendered against him. The defendant brought a writ of error, and assigned as error—That no copy of the scire facias was served upon…
1Opinion of the CourtWheeler, 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…
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