London Assur. Corp. v. Lee
| Decision Date | 14 May 1886 |
| Citation | 18 S.W. 508 |
| Parties | LONDON ASSUR. CORP. v. LEE <I>et al.</I><SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Supreme Court |
Suit by T. H. Lee & Co. against the London Assurance Corporation to recover on a policy of insurance. Judgment by default for plaintiffs. Defendant brings writ of error. Affirmed.
Fowlkes & Looney, for plaintiff in error. Chas. I. Evans, for defendants in error.
The defendant below being a non-resident, a notice of this suit was served upon its secretary in New York, as prescribed in Rev. St. arts. 1230-1234. The defendant filed a motion to quash the service, but made no objection to the jurisdiction of the court as thus attempted to be acquired. At the same time the defendant filed a general demurrer and general denial. These latter pleadings were to be considered only in the event that the motion to quash the service was overruled. The court sustained the motion, and quashed the service, and the cause was continued to the next term of the court. At that term a judgment by default, with writ of inquiry, was taken against the defendant, and the writ was subsequently executed by the judge, and judgment rendered for the full amount of the claim. This judgment is brought before us for revision upon writ of error, and it is contended that it was error to render judgment against the defendant when it had upon file a general denial of the allegations of the plaintiffs' petition. There is nothing in the record to show that the defendant called its pleadings to the attention of the court, or insisted upon their consideration, or asked that the judgment be set aside at the term during which it was rendered. It was presumptively in court after it had answered, and its duty was to look after its interests in the cause. It neither objected to the interlocutory judgment by default, nor appeared to look after the case when before the court upon writ of inquiry. This court has frequently held that, under such circumstances, it will presume that the defendant waived an answer, and the judgment will not be disturbed. Pierson v. Burney, 15 Tex. 272; McKellar v. Lambkin, 22 Tex. 244; Beal v. Alexander, 6 Tex. 541; Callison v. Autry, 4 Tex. 371; Hopkins v. Donaho, 4 Tex. 336. Moreover, as the defendant filed its answer conditionally, and with the express understanding that it was not to be considered as in the cause unless the motion to quash was overruled, and that motion was sustained, in compliance...
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Spivey v. Saner-Ragley Lumber Co.
...say that our holding in reference to a nil dicit judgment and its effects is to be distinguished from those decisions (Insurance Co. v. Lee, 66 Tex. 247, 18 S. W. 508, and similar cases) which uphold a judgment by default when the defendant has an answer actually on file, but fails to call ......
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Dawson-Austin v. Austin
...quash citation prevented the motion to quash the service of citation from being moot. She relies on two cases. In London Assurance Corp. v. Lee, 66 Tex. 247, 18 S.W. 508 (1886), and Allright, Inc. v. Roper, 478 S.W.2d 245 (Tex.Civ.App.--Houston [14th Dist.] 1972, writ dism'd w.o.j.), the de......
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...was rendered. It has often been held that under such circumstances a judgment by default will not be disturbed. London Association Corporation v. Lee, 66 Tex. 247, 18 S. W. 508; Lytle v. Custead, 4 Tex. Civ. App. 490, 23 S. W. 451; Hopkins v. Donaho, 4 Tex. 336; Bartlett v. Jones, 103 S. W.......
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