Limburger v. Engle

• Decision Date: 26 October 1898
• Citation: 47 S.W. 683
• Parties: LIMBURGER v. ENGLE.
• Court: Texas Court of Appeals

47 S.W. 683

LIMBURGER v. ENGLE.

Court of Civil Appeals of Texas.

October 26, 1898.

Appeal from district court, Bexar county; J. L. Camp, Judge.

Action by Matthew Engle against Henry Limburger, Sr. From a judgment for plaintiff, defendant appeals. Affirmed.

Webb & Finley, for appellant. T. J. Newton, for appellee.

FLY, J.

Appellee sued appellant to recover damages resulting from malicious prosecution. Appellant did not appear and answer, and, upon evidence introduced by appellee, judgment was rendered in his favor, in the sum of $250. Two days afterwards, appellant filed a motion in arrest of judgment, on the ground that he had not been cited. The issue was tried by the court, and the motion overruled. The evidence establishes that appellant was, beyond doubt, duly cited to appear and answer the suit against him, and that he, without excuse, neglected the case, and permitted judgment by default. None of the assignments are well taken, and the authorities cited are decidedly against the position of appellant. The officer swore that he delivered the citation to appellant, and told him what it was, and appellant at the time replied that he knew what it was. His attorney spoke to him about it, and he again said that he knew about it. Appellant admitted that he knew about the suit, and did not positively deny that the officer had given him the citation, but said, "If the sheriff handed me a paper, I know nothing about it." This appeal was evidently perfected for delay alone, as suggested by appellee, and the judgment will be affirmed, with 10 per cent. damages.