DocketNumber: No. 2919
Citation Numbers: 3 Willson 457
Judges: Hurt
Filed Date: 10/17/1888
Status: Precedential
Modified Date: 9/7/2021
Opinion by
§ 382. Appearance of defendant; recitals in judgment held to show an appearance, etc.; case stated. Defendant in error recovered of the plaintiff in error in the county court a judgment which reads as follows: “On this day this cause came on for trial, when came the plaintiff by attorney and announced ready for trial; and it appearing to the court that all of the defendants had been duly and legally cited to answer herein, and all
It is contended by plaintiffs in error that the foregoing is a judgment by default, and that it was rendered without legal service of citation upon them. Held: That the recitals in said judgment show not only an appearance by the defendants, but also an agreement for a stay of execution, and it is not a judgment by default. [Laird v. Thomas, 22 Tex. 276; Hutchinson v. Owen, 27 Tex. 287; Lessing v. Cunningham, 55 Tex. 231; Garner v. Burleson, 26 Tex. 348.] The decisions cited were made long subsequent to the enactment of articles 1241, 1245, of the Revised Statutes, and must be viewed as being in harmony with said articles. The holding in this case is not in any respect at variance with the opinion of this court in Wells v. Ames Iron Works, ante, § 297.
Affirmed.