
    Saunders and Another v. Gilmer.
    Where the petition alleged that one defendant resided in Anderson county and the other in Cherokee county, where the anil wan instifulcd.and process was directed to the sheriff of Cherokee eomity and was returned by him served upon both defendants: Held, There was no error, (he presumption being that the defendant who resided in Anderson was found in the county of Cherokee.
    Error from Cherokee. Saunders and Lacy were jointly sued in the county of Cherokee. The petition alleged that Saunders resided in tiie county of Anderson and Lacy in Cherokee* county. Citation issued to the sheriff of the latter county, commanding him to summon both defendants, which lie accordingly did. Tiie defendant Saunders moved the. court to quash the writ and service as'to him, which tiie court refused. There was judgment for the plaintiffs, and filio defendants brought a writ of error.
    
      G. A. Everts, for plaintift'in error.
    Tiie petition of Gilmer alleged that the defendant Saunders resides in the comity of Anderson. The issuance of a Writ of citation directed to the sheriff oí Cherokee county, commanding him to summon Saunders, is directly contrary to the provisions of the statute, (I fart. Dig., art. G74,) and consequently is illegal and a nullity, and should have, been quashed and set aside and the cause continued for process. This is the. doctrine, laid down in tiie case of Ward & Martin v. Latiimer, Slngby & Co. The petition there alleged that both defendants resided in ilio River comity, and a writ was issued aiid directed to tiie, sheriff of Lamar comity to summon Martin, and was served upon Martin in Lamar county by the sheriff of Lamar county. Tiie court say that the writ and service were liad, upon precisely the reason that neither is sanctioned by tiie law but are contrary to the statute.
    
      Donley and Anderson, for defendant in error.
   Wheeler, J.

That the sheriff of the county in which suit was properly instituted was authorized to serve process oil all tiie defendants found in his county, wherever they were alleged to reside, cannot admit of a question.

Tiie case of Ward v. Lattimer, (2 Tex. R., 245,) cited by the plaintiffs in error, was unlike tiie present. In that case botli defendants resided in the county where suit was instituted, and the citation was served on one of them in a different county. The ease therefore presented a very different question from the present.

Judgment affirmed, with damages.  