Burton v. Varnell
| Decision Date | 31 December 1846 |
| Parties | JOHN J. BURTON v. WILLIAM M. VARNELL |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Error from Houston County.
A judgment for plaintiff, rendered after the defendant had answered, with a stay of execution for nine months, will be considered as a judgment by consent, having the effect of a judgment by confession. [2 Tex. 582;4 Id. 373;9 Id. 495;13 Id. 36;22 Id. 276.]
There was no appearance for the plaintiff in error.
The defendant in error, by his counsel, S. A. Miller, submitted the record to the court, and suggested that the writ of error was sued out for delay.
There has been no brief filed by the plaintiff in error. From the record it appears that suit was brought by the defendant in error against the plaintiff on a note of hand; that after answer had been filed there was a judgment for the plaintiff below, with a stay of execution -- nine months. We believe that according to a sound rule of construction, we are bound to conclude that the answer had been waived, and the judgment entered by consent, and that it is in effect a judgment by confession. No proceeding being had until after the expiration of the nine months is a strong circumstance in support of this conclusion. The judgment must be affirmed with damages.
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Merritt v. Clow
...authorized to confess judgment. [23 Tex. 104;26 Tex. 84.] A judgment by confession and upon compromise is a waiver of all previous errors. [1 Tex. 635;4 Tex. 373;9 Tex. 495;13 Tex. 36;22 Tex. 276.] Robert J. Clow, the defendant in error, filed his petition in the district court, alleging th......