
    SPARKMAN v. SPARKMAN.
    (No. 424.)
    (Court of Civil Appeals of Texas. Beaumont.
    Feb. 6, 1919.)
    Divorce <®=»77 — Service After Return Day.
    In view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1868, in husband’s suit for divorce, default judgment granting him divorce was erroneous, where notice to serve wife as nonresident was issued November 24th, returnable the 27th, but was not delivered to her until December 5th.
    
      Error from District Court, Jasper County; W. R. Blacksbear, Judge.
    Suit for divorce by L. Sparkman against Lizzie Sparkman. To review decree granting divorce, defendant brings error.
    Decree reversed, and cause remanded.
    Andrews, Streetman, Bums & Logue, of Houston, for plaintiff in error.
    Howth & Vaughn, of Beaumont, for defendant in error.
   WALKER, J.

This is an appeal by appellant from a decree granting a divorce to tbe appellee. Notice to serve tbe appellant as a nonresident was issued by tbe clerk of tbe district court of Jasper county on tbe 24th day of November, 1916, returnable on tbe 27th day of November, 1916. This notice was delivered to tbe appellant in Ouacbita county, Ark., on tbe 5tb day of December, 1916. Appellant did not answer in tbe case. At tbe succeeding term of tbe district court of Jasper county, beginning on tbe 28th day of.May, 1917, and ending on tbe 30tb day of June, 1917, tbis cause came on for rebearing, and the appellee was granted a divorce.

Appellant assigns as error the action of the court in rendering judgment on tbis service. Tbis assignment must be sustained. Cobb v. Brown, 3 Wilson, Civ. Cas. Ct. App. § 314; Harrington v. Harrington, 4 Willson, Civ. Cas. Ct. App. § 80, 16 S. W. 538; Vernon's Sayles' Tex. Civ. St. 1914, art. 1868, as follow:

“If the citation be issued too late, or if it cannot be served at least ten days before tbe first day of such return term, exclusive of tbe days of service and return, the officer to whom it is delivered shall nevertheless proceed to serve the same at any time before the return day thereof; and such service shall compel the defendant to plead at the next succeeding term of the court.”

In Harrington w. Harrington, supra, Judge Willson said:

“Judgment by default was rendered in favor of defendant in error, against plaintiff in error, in the county court, upon a promissory note for $307.15 and interest thereon and costs. Said judgment is erroneous because the defendant in the suit was not cited to appear and answer in the suit in the manner provided by law. A citation was issued March 29, 1888, * * * and this citation was served upon the defendant June 25, 1888, and the judgment by default was rendered July 6, 1888. Service of a citation after the return day thereof is a nullity, and will not authorize a judgment by default. Rev. St art. 1228; 3 Civil, Cas. Ct. App. § 314. The judgment is reversed, and cause remanded.”

For tbe error indicated, tbis cause is reversed and remanded. 
      <§z»For other eases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     