James R. Gamble v. William C. Dalrymple et al., 28 Tex. 593

Donley, J. —The first error assigned in this cause is, “that the court erred in requiring the said James B. Gamble to be made a party defendant, and in making service on A. S. Walker a service on him, Gamble, and sufficient to compel him to . answer, and in overruling the motion to quash said service, made by said Gamble before answering further.” It appears from the evidence in the cause that the plaintiff in error was a non-resident of the State, nor does he appear to have been in the State at any time after the institution of the suit.

Article 418 of O. & W.

Dig. provides that, “ If the plaintiff, his agent or attorney, shall, at the time of the institution of his suit, or at any time during the progress thereof, make affidavit before the clerk of the court that the defendant is not a resident of this State, or that he is absent from the State, or that he is a transient person, or that his residence is unknown to the affiant, the clerk of the court shall issue a citation to the proper officer, (which citation shall contain a brief statement of the cause of action,) commanding the said officer to summon the defendant by making publication of the citation in some newspaper published in the county where the writ issued, if there be a newspaper published in said county, but if not, then in the nearest county where a newspaper is published, for four successive weeks previous to the return day of such process.” (Paschal’s Dig., Art. 25, Note 233.) The service authorized by law in cases of non-resident defendants is' by publication in a newspaper.

To have authorized service by publication, there should have been an affidavit, as provided in the law above cited. This service is not made in the manner authorized by law. The statute having provided that non-resident parties shall be served by publication in a newspaper, supersedes other, mode of service. It is believed that, the law having provided .what shall be sufficient service in all cases of non-resident as well as of resident parties, it is not competent for a party to adopt a substituted service.

It is certain that the service on which it is sought to make the plaintiff in error amenable to the judgment of the court is not to be found in any statute of the State, nor is it believed to have a precedent in any adjudicated cause in this court. Ho necessity is perceived for departing from the rule prescribed by the law. If the defendants in error desired to make the plaintiff in error a party to this cause, the law had prescribed the course to. be pursued.

They have not thought proper to follow the directions of those whose duty it is to prescribe the rule; and as they show no warrant in the law for the substituted course which they have adopted, the action of the court founded on this unauthorized service cannot be sustained. The judgment is reversed, and the cause Remanded.