¶1The certified copy of the citation by publication for Samuel H. Rice and of the sheriff’s return thereon, fails to show when said publication was made, and, as in other cases where the date of service does not appear, the return is defective. (Paschal’s Dig., art. 5121; Williams v. Downes, 30 Tex., 52; Whitaker v. Fitch, 25 Tex; Supp., 309; Sloan v. Batte, 46 Tex., 215.) The evidence of service is also defective, because the citation issued after the “Act prescribing the mode of service in citation cases,” approved March 15, 1875, had taken effect, and it does not appear from the record that the publisher of the newspaper made affidavit showing the length of time the publication was ma.de. Since the enactment of that statute, it must appear from the record that such affidavit was made. (Hewitt v. Thomas, 46 Tex., 232.)
¶2Because the exhibit attached to the motion for rehearing fails to show that Samuel H. Rice had been cited by publication or otherwise, and because, in our opinion, it was error in the court to proceed to try the case on the imperfect return of the citation by publication, the motion for rehearing and certiorari is overruled.
¶3Motion overruled.