Jewett v. Miller

• Decision Date: 01 January 1857
• Citation: 19 Tex. 290
• Parties: SAMUEL G. JEWETT AND ANOTHER v. SOLOMON MILLER.
• Court: Texas Supreme Court

19 Tex. 290

SAMUEL G. JEWETT AND ANOTHER

v.SOLOMON MILLER.

Supreme Court of Texas.

1857.

Where the acceptance of service appears to have been written on the petition and signed by the defendant, the filing of the petition is a compliance with the requirement of the statute, that such acceptance shall be filed among the papers of the suit as a record.

Error from San Augustine. Tried below before the Hon. Archibald W. O. Hicks.

Suit by appellee against Samuel G. Jewett and Charlton Payne on their joint and several promissory note. Immediately after the petition in the transcript followed an acknowledgment of service “of the foregoing petition,” etc., by Payne. Jewett was served and answered. Verdict as to Jewett, and judgment thereon, and judgment by default against Payne, reciting that he had been duly served with process; all in same entry.

T. W. Jones, for plaintiffs in error, argued that it did not appear that the acceptance of service by Payne had been filed among the papers of the suit as a record; and that the joint judgment as to Payne being therefore bad, it was bad also as to Jewett. Hart. Dig. art. 678; Hulme v. Jones, 6 Tex. 242;Roberts v. Stockslager, 4 Id. 307.

HEMPHILL, CH. J.

The ground assumed against the joint judgment in this case is, that there was no service on the defendant Payne, and he not having appeared, there was error in giving judgment against both defendants. Payne accepted service. But it is contended that his act is nugatory, not having been done in due form of law. By art. 678, it is provided that the acceptance shall be made in writing, signed by the party, his agent or attorney, and filed among the papers of the suit as a record. The acceptance was in writing, was signed by the party, and was evidently written on or attached to the petition. He acknowledges service of the foregoing petition. Where acceptance is written on a separate piece of paper, there is some reason in having it marked filed. But surely this cannot be required where it is written on a petition which is already filed as a record. It is incorporated with the principal paper in the cause, and becomes as much a record as the petition on which it is indorsed, or to which it is attached. The service is deemed sufficient, and there being no error the judgment is affirmed.

Judgment affirmed.