delivered the opinion op the court :

Waiving the consideration of minor objections to the judgment in this case, we proceed at once to an examination of those which seem to be more serious and formidable. First. It is insisted that the failure to make proof of the non-residence of appellant must be fatal to the judgment.

Section 439, Civil Code, provides that the statements of the petition against a defendant constructive^ summoned, and who has not appeared, except such as are for his benefit, shall not be taken as true, but are to be established by proof. But where the defendant files with the petition his own affidavit, stating that any of the allegations thereof recited in the affidavit are true, and known to be so by the defendant, and that they cannot be proved or shown otherwise than by his answer, so far as affiant knows or believes, such allegations, unless denied by the answer, shall be taken as true.

Appellant was proceeded against as a non-resident, and A. McElroy, in his affidavit, states not onty that he was a non-resident, but also that he had voluntarily left *135tbe State and county of his residence more than thirty days before the making thereof, and during that period had voluntarily remained in the so-called Confederate States, and still so remains, omitting the statement of the facts which would have dispensed with the necessary proof if they had been made. And having failed to make proof of the non-residence of appellant, or that he had voluntarily left the place of his residence and gone within the military lines of the so-called Confederate States, and remained there voluntarily for more than thirty days, it was erroneous to render the judgment.

It is true, that, in the first sentence of said section, the language is, that the “ statements of the petition ” are required to be established by proof. But it is apparent, from what follows, that the material allegations necessary to authorize the proceedings and judgment, whether they are stated in the petition or the affidavit, must be proved.

Nor was any affidavit filed in this case, as required by section 251, Civil Code, before the judgment for the sale of the real estate was rendered. -

Moreover, it does not appear that the attorney who was appointed to defend for appellant had made a written statement of all he had done in the case, signed by him and filed in the papers, when the order for his compensation was made, all of. which is imperatively required by section 441 Civil Code, before any such order is authorized, and, consequently, more land was sold than was necessary. Wherefore, for the errors pointed out in this opinion, the judgment for the sale of the land of appellant is reversed, and the cause remanded for further proceedings consistent herewith.

*136If appellant should desire and offer to do so, in reasonable time, he should be permitted to file his answer and make defense to the action, if he has any.

For the reasons stated in the opinion in the case of Jackson vs. McElroys, the judgment of Moore vs. Jackson must be reversed, and the cause remanded, with directions for further proceedings consistent with said opinion.

Although Barber, the purchaser from Moore, was made a defendant to a rule against himself and Moore, in relation to a surplus of land in the tract — it having been sold by the acre — he certainly was no party to the litigation involving the substantial rights; and before the sale should be set aside upon the return of the cause, he should be made a defendant by amended pleadings, and the opportunity offered him to litigate the question of setting aside the sale, if he should choose to do so; and this is the only modification made in the opinion.