40 IEDERAL Rmrommz.
manded publication in some newspaper published, and that it does
not affirmatively appear that the San Antonio Express was a news-
paper, or what it was. At the date of this citation the law upon the
subject of legal notices was that the governor of the state should
designate in what papers legal notices of that character should be
published. The district court being a court of general jurisdiction,
regularity will be presumed unless the contrary appears; and this
rule would seem to require that the presumption be indulged that the
governor had discharged that duty, and had designated the San An-
tonio Express as the paper, and that the olhcer had followed the
designation. See Laws 1870; Act August 13, § 13.
The second objection is that the officer's return as to the mode of
service is not sufficient, in that it states as a fact that publication
was made for four successive weeks, etc., when it is contended that
the return should have stated the days upon which the publications
were made, so that the court could determine whether the notice had
in fact been published for four successive full weeks. Under the rul-
ings of the supreme court of this state, I think probably, if there
had been an appeal or writ of error to reverse, the proposition would
have been sustained; but I have found no case that goes to the ex-
tent of holding that such judgment was void when collaterally at-
tacked, as in this case. The record does not affirmatively show a
want of publication for four successive weeks. Therefore, in a col-
lateral attack, the presumption is that the publication was, as stated
in the return, for four successive weeks before the return-day.
Lawler v. White, 27 Tex. 253. It will be noticed that each case re-
ferred to in the Texas Reports is where the judgment was directly at-
_ tacked, or when the record affirmatively showed the insufficiency of
the service and return.
Judgment for the defendant.
Huonss v. Duuunn Momomn & Tnusr Iuvmsrmrmr Co. (No. 1,065.)
(Circuit Umurt, D. Oregon. July 12, 1886.)
1. E1moa—JuDeMnN·r Nor Susrnnnnn BY.
A writ of error is in the nature of a new suit to set aside or annul a judg-
ment for error of law apparent on the face of the record, and pending the
same the judgment is in full force and eifect as a bar or an estoppel.
2 SAME—INCONSIBTENT Posrrrons rn Conmi.
A party who takes a position in the course of a litigationis estopped to act
inconsisteutly therewith, so long as the same is unretracted, and this includes
the case of one who, having taken a judgment of this court against himself
to the supreme court on a writ of error, attempts, while said proceeding is
still pending, to plead said judgment in bar of an action against himself by
the plaintiff therein.
Action to Recover Money.