McAnelly v. Ward Bros. , 72 Tex. 342 ( 1888 )

Acker, Presiding Judge.

On the 27th of April, 1886, appellant signed a written acceptance of service and waiver of issuance and service of process, endorsed upon a petition which had been prepared to be filed in a suit against him by appellees on two promissory notes.

On the next day, April 28th, 1886, the petition was filed and the case entered upon the docket.

On May 10th, 1886, appellant moved to quash the acceptance and waiver of service upon the ground that it was made before the suit was filed, the motion stating that the appearance was for the purpose of the motion only. The motion was overruled.

On May 14th, 1886, judgment by default was rendered against appellant, and on the same day he filed a motion to set aside the judgment because "there was no such service, acceptance, or waiver thereof as authororized the court to render the judgment.”

The motion was overruled and the case is brought here by writ of error.

The nineteenth Legislature enacted the following amendment to the general statutes:

"Article 1347a. The acceptance of service and waiver of process provided for in article 1240, and the entry of appearance in open court as provided for in article 1241, for the confession of judgment as provided for in article 1347, shall not in any action be authorized by the contract or instrument of writing sued on, or any other instrument executed prior to the institution of such suit, nor shall such acceptance or waiver of service be made until after suit brought.” Gen. Laws, 1885, 33.

We think this statute in its application to this case admits of but one construction, and that is that acceptance of service and waiver of issuance and service of process made prior to the institution of the suit will not support a judgment by default. It is contended by appellees that the Legislature never intended this law to apply to cases like this, but that the purpose of the Legislature was to prevent creditors from obtaining undue advantage over debtors.

In reply to this we deem it sufficient to say that it is beyond our power to exempt from the operation and effect of a general law any case that clearly comes within both the spirit and the letter of the law.

We think the court erred in refusing to set aside the judgment, for which it should be reversed and the cause remanded.

Reversed and remanded.

Adopted December 18, 1888.