This action was originally brought against B. Porter, sheriff of Bobertson county, Texas, for *541the seizure of certain drugs and medicines; and by an amended petition, appellant, Tullís, and Davidson and Robira were made defendants.
Porter, Davidson and Robira answered, setting up their defenses; but Tullís failed to answer, and judgment was taken against him by default, with a writ of inquiry. The cause was submitted to a jury, who found in favor of Porter, Davidson and Robira, but, under the positive instructions of the court, found a verdict against Tullís, for the full value of the drugs seized by the sheriff. He filed a motion for a new trial, which was overruled by the court, and he has appealed.
The charge of the court, in effect, instructed the jury to find against the defendant, Tullís, the value of the goods seized by the sheriff. This, we think, was error. It was in proof that at the time of the alleged trespass of appellant, the drugs were not the property of the plaintiff. That Tullís had no other connection with the drugs than to assist the sheriff in taking an inventory of the same; that he was not present at the time the drugs were seized, and that he in no way aided in the- seizure, removal or conversion of the same. Most clearly, then, under the evidence, the value of the drugs subsequently seized by the sheriff could form no measure of damage as against Tullís. If he had trespassed upon the property of plaintiff, he might have been liable for damages; but his liability should bear some relation to the injury committed. The evidence negatived any combination on the part of Tullís to seize or convert the goods; and he should not therefore be held to answer for others’ trespasses or damages inflicted by them.
We think the court also erred in overruling appellant’s motion for a new trial. He was not present by himself or counsel, and made no defense, but in his motion for a new trial he showed that he had a defense, and that his *542absence from the court, and his failure to appear, in obedience to the process of the court, were caused by his compulsory attendance on the Federal Court at Austin. Under the authority of Thomas v. Womack, 13 Texas, 585, we think this a sufficient showing to entitle appellant to a new trial.
In the case of Portwood v. Wilburn, 33 Texas, 713, this court held, that it was error in the District Court to permit a plaintiff to amend his petition, after a default taken, without having that default set aside; and we have only to repeat that opinion, in order to decide one of the causes of complaint in this case.
We are also of the opinion that there is a defect in the sheriff’s return of service on Tullís, which will require a reversal of the judgment. The sheriff certifies that he executed the same “by delivering to the within named, T. E. Tullís, in person, a certified copy of this writ, and a copy of petition.” What petition? The return fails to inform us whether the copy of petition served was a copy of the petition in this or any other particular case. In Graves v. Robertson, 22 Texas, 130, and in Underhill v. Locket, in Robert v. Stockslager, 4 Texas, 307, this court has held that no presumptions will be indulged to aid the sheriff’s return in order to support a judgment by default. The statute is plain and mandatory, and if parties will take judgment by default, without requiring a$correct and specific return by the sheriff of the service of the citation, as the law directs, they should not complain if their judgment is set aside on an appeal.
For the reasons above given we think the court erred in overruling the motion for a new trial. The judgment of the District Court is therefore reversed and the cause remanded.
Reversed and remanded.