Hopkins v. Donaho

• Decision Date: 31 December 1849
• Citation: 4 Tex. 336
• Parties: HOPKINS v. DONAHO.
• Court: Texas Supreme Court

4 Tex. 336

HOPKINS

v.DONAHO.

Supreme Court of Texas.

December Term, 1849.

Where the transcript of the record contained an answer marked “filed” on the fourth day of the term, and there was judgment by default: Held, That the entry of the judgment bore the highest evidence of verity, and the judgment was therefore affirmed. (Note 71.)

A defendant who has appeared and answered is presumed to have been present in court and cognizant of the action of the court in respect to his case until it shall have been disposed of for the term by a trial or continuance.

A party who stands by in the court below and, without making any objection, suffers the court to err as to a matter of fact, as, for instance, to render judgment by default, under a misapprehension that no answer has been filed, and fails afterwards to move the court to correct the mistake, cannot take advantage of such error on appeal.

Error from Bowie. The defendant in error brought suit against the plaintiffs in error upon a promissory note. The defendants were duly served with process, and judgment was taken against them by default.

The judgment recites that “the defendants being duly summoned, and failing to appear and file their answer, it is considered,” &c.

There is in the transcript what purports to be an answer marked “filed 3d May, 1849,” that being the fourth day of the term of the court at which the judgment by default was taken.

Morrill, for plaintiff in error.

Morgan, for defendant in error.

WHEELER, J.

The supposed presence of the answer when the judgment was taken is the ground relied on for a reversal of the judgment.

Did it appear that there was an answer in when the judgment was taken, and that that fact was brought to the notice of the court, there can be no doubt the objection would be fatal. (Ryburn et al. v. Nail, 4 Tex. 305.) But there is a manifest discrepancy between the apparent filing of the answer and the statement contained in the judgment as to the question of fact; and the question is, which bears the highest evidence of verity? This question it cannot be difficult to determine. The one is the mere act of the clerk; the other the judgment of the court. To the former there are no witnesses but the party who produces the paper and the clerk who, at the instance of the party, marked “ filed” upon it; the other is pronounced by the judge in open court, in the presence of the parties; is spread upon the minutes of the court; is read by the clerk at the opening of the court on the following day; and is finally approved by the judge in signing the minutes at the close of the term. To hold that the mere apparent filing of the answer by the clerk, when not noted in the minutes nor otherwise shown by the record, shall overbear and control the recitals of the judgment would be at variance with the most obvious principle, and would open a door to abuses which may be readily conceived. Let this principle be established, and to reverse a judgment it would...