De Witt v. Monroe & Brother , 20 Tex. 289 ( 1857 )

Roberts, J.

The legal effect of the judgment of the Court in' this case is, to set aside the satisfaction entered on the execution by Monroe & Brother, who were the plaintiffs in execution, for the sum of five hundred and thirty-six -°vtj dollars. The record does not show any notice to defendants in the execution, C. E. De Witt and I. Gr. Jones, against whom an execution was ordered for that amount. Nor does the judgment recite that they appeared. The statement of facts was signed by their attorneys, and it is therein stated that notice of the motion “ was never served on I. Gr. Jones, one of the defendants or his attorneys; that B. F. Fly appeared for him, and contested the motion upon the ground, that said I. Gr. Jones had no notice of the motion to set aside the levy and return,” &c., and also that defendants, upon the motion being granted, by their attorneys, gave notice of appeal to the Supreme Court. It does not appear, then, that the appellants or either of them appeared in the Court below, for any other purpose than to object to the action upon the motion, on account of the want of notice, and, then, after judgment, to give notice of appeal, and agree to and sign a statement of facts. The question now is whether the appellants appeared in such a manner as to cure the want of notice of the motion. We think not. An appearance for the purpose of objecting to defective process or want of process, has often been held by this Court to be permissible, and that it does not bind the party to a full appearance in the cause.

It has also been determined that giving notice of appeal to the Supreme Court did not operate as an appearance of the party to a motion in which notice was necessary. (McKinney & Williams v. Jones, 7 Tex. R. 599; and 3 A. K. Marshall, 154, referred to.)

It would naturally follow that agreeing to a statement of facts after judgment, and after notice of appeal, would not any more operate as an appearance; for the reason of the one equally applies to the other.

That there must have been notice of this motion given to the defendants, is almost too plain for controversy. As the record stood before the motion was made, the original judgment was,, extinguished to the extent of the entry of satisfaction, and by the action of the Court their liability thereon was sought to be revived, and an execution for it was ordered. Whether they could have successfully resisted the motion, had they been properly brought into Court, is not the question. Their interests were being adjudicated, and they had a right to be notified, and then to be heard, by the Court making such adjudication. This is a fundamental principle, applicable to all the proceedings of a Court of justice, at every stage of their progress. (Toler & Crosby v. Ayres, 1 Tex. R. 398; McKinney & Williams v. Jones, 598; Lasselle v. Moore, 1 Blackf. R. 226.)

The defendants to a judgment, after its rendition, are not presumed to be in Court, and cognizant of its proceedings, as they are, after an appearance and before judgment.

The Court therefore erred in entertaining this motion, and setting aside the levy and sale of the Sheriff, at the instance of the purchaser, without first having given notice to the defendants in the execution. Judgment reversed and cause remanded.

Reversed and remanded.