Flanagan v. Bruner , 10 Tex. 257 ( 1853 )

Hemphill, Ch. J.

These eases are all judgments hy confession, and one common error pervades them all, viz : that there was no affidavit hy plaintiff of the justness of the debt. The statute (art. 770) authorizes a person, for any bona fide debt, to appear without process, in person or hy attorney, and confess judgment; hut in such cases a petition shall always he filed and the justness of the debt sworn to hy the person in whose favor the judgment is confessed.

Petitions were filed in the several eases, hut in the two former there was no process, and in the latter, though a citation was made out and indorsed as issued, yet there is no return that it was received or served hy the sheriff, nor was there any waiver or acceptance of such service in the terms provided hy law. A defendant may, w'ithout process, appear and confess judgment, and tiie confession will be good, provided the formalities prescribed by statute he duly observed. If lie appear under process and confess judgment the judgment will he valid, whether there be an affidavit by the plaintiff or not; hut his appearance cannot he said to be with process when the citation is merely made ont, but there is no service by the officer nor waiver or acceptance of such service. The statute, when referring to appearance without process, means without service of process. A waiver or acceptance is, hy law, as effectual as actual service.

The fact that citation was made out in the last case does not, without service, cure the defect in the judgment for the want of an affidavit. (Montgomery v. Barrett, April Term, 1852, 8 Tex. R.) Judgment reversed in all the cases, and causes remanded.

Beversed and remanded.

Note Í6. — Gerald v. Burther, 29 T., 202.