
    John H. Blain v. F. E. McManus.
    (No. 5399.)
    Citation.— Service on defendant in conformity with Revised Statutes, articles 1230-1233. The facts stated in the officer’s return of service, supported by his affidavit, not being controverted, .held good.
    Appeal from Nueces county. Opinion by Walker, P. J.
   Where the defendant is a citizen of this state, and not a non-resident, and is served with notice and a certified copy of the plaintiff’s petition, in conformity with articles 1230, 1231, 1232 and 1233, Revised Statutes, the truth of the facts stated in the officer’s return of service, supported by his affidavit, not being controverted, their verity must be assumed as undisputed facts, and plaintiff was entitled to judgment by default for want of an answer upon the call of the appearance docket or at any time after appearance day. Art. 1282, R. S. The competency and disinterestedness of the party performing the service is presumed. Jones v. Jones, 60 Tex., 451. Where the defendant was cited December 10, 1883, the appearance day being December 14, 1883, and he filed no answer until judgment by default was asked for, and nearly three weeks afterward, and during the same term of court, the judgment was prima facie regular, and was not affected by an answer filed after its rendition, unless for causes requiring it to be set aside. The validity of the service does not depend upon the official character of the person who served the notice, nor upon any other test of qualification than that prescribed by statute. It is within .the discretion .of the court to permit the notice to be withdrawn from the record to enable the person who made the return to correct any informality therein. Arts. 1233, 1239, R. S. The service having been actually made on the defendant, it was not void by reason of the failure to have an affidavit attached to the notice setting forth the required facts, and the defendant was bound fco take notice of the return that was made, and of the order of the court allowing the notice to be withdrawn. Freeman on Judg., sec. 126. The statute req uiring the return to be attached to the notice is merely directory, and the omission to so attach it would not, of itself, warrant the court in setting aside the judgment. Cartwright v. Chabert, 3 Tex., 261.

Affirmed.  