Appeal from Dallas County Court; T. A. Work, Judge.
Suit by R. P. Wofford against John Mach and Frank J. Mach. Judgment for plaintiff against the last-named defendant, and he appeals. Affirmed.
The assignments of error are as follows:
First assignment of error: "The court erred in rendering judgment on the 9th day of January, 1920, in favor of the plaintiff and against this defendant."
Second assignment of error: "The court erred in not permitting the defendant to file an answer before rendering judgment."
Third assignment of error: "The court erred in permitting the plaintiff to dismiss this cause of action against the defendant John Mach."
Fourth assignment of error: "Because the court erred in rendering judgment against this defendant, and in refusing to permit this defendant to make A. U. Puckett a party to this cause."
Fifth assignment of error: "Because the court erred in rendering judgment herein, and in failing to set aside said judgment, and sustaining this defendant's plea to the jurisdiction of this court."
Sixth assignment of error: "Because the court erred in rendering judgment herein, and in refusing to set aside said judgment, for the reason that the plaintiff is not and was not the owner and holder of said note."
RAINEY, C. J.
Statement of the nature and result of the suit is taken from the brief of appellee, which we find correct, and the same is adopted by this court, and is as follows:
"This is a suit by R. P. Wofford, appellee, against John Mach and Frank J. Mach on a promissory note payable to A. U. Puckett and by him, for a valuable consideration, before maturity, sold and transferred to appellee. Suit was filed October 17, 1919, and citation issued returnable on the first Monday in November, 1919. The sheriff's return on this citation is as follows: `Came to hand on the 18th day of October, 1919, at 12 o'clock a. m., and executed on the 21st day of October, 191_, at 10 o'clock a. m., by delivering to Frank J. Mach, John Mach has gone to Europe, the within-named defendant, in person, a true copy of this writ, together with a certified copy of plaintiff's original petition.' On November 3, 1919, the defendant Frank J. Mach appeared by his attorneys of record and filed a motion to quash the service. This motion to quash was sustained, and the case continued to the January term, 1920. On January 6, 1920, judgment by default with a writ of inquiry was rendered by the trial court in favor of appellee against the defendant Frank J. Mach; said defendant having appeared at the previous term, and having failed to file any answer in this cause. On January 9, 1920, this cause came on to be heard on said writ of inquiry, and final judgment was rendered in favor of appellee against the defendant Frank J. Mach on said note and discontinued as to the other defendant. On January 9, 1920, the defendant Frank J. Mach filed in the trial court his original answer, consisting of a general exception and a general denial, signed by his attorneys of record, but not verified by the affidavit of any one. On January 10, 1920, the defendant Frank J. Mach filed his motion for a new trial, and on February 24, 1920, said defendant filed his amended motion for a new trial, and, after hearing the evidence on said amended motion for new trial, the court overruled same, and
the said Frank J. Mach excepted, gave notice of appeal, and perfected his appeal to this court by filing his supersedeas bond, with T. H. Skravanek and Joe Norg as sureties, and in due time filed herein a transcript of said proceedings and a statement of facts introduced upon the trial of defendant's motion to set aside the judgment of the court rendered by default on the 6th day of January, 1920, and made final upon proof made by plaintiff on the 9th day of January, 1920."
Appellee objects to the consideration of appellant's first assignment of error, because it fails to specifically point out any error, and presents the following counter proposition:
"The court did not err in hearing proof on writ of inquiry and rendering final judgment when the case was regularly reached for trial on the docket of the court where default judgment had previously been regularly taken"
—and makes the following statement:
"This was a suit on a promissory note executed by appellant and another. Citation was served on appellant, citing him to appear at the November term, 1919, and appellant appeared on November 3, 1919, and filed a motion to quash the service on him. The January term, 1920, commenced on January 5, 1920. On January 6, 1920, the trial court rendered judgment by default in favor of appellee and against appellant, and granting writ of inquiry. On January 9, 1920, when this cause was regularly reached on the docket of the trial court, the case was heard on said writ of inquiry. The appellee appeared by his attorney and announced ready for trial, and the appellant appeared by his attorney and represented to the court that he had been employed by appellant, and that he had prepared an answer and desired to file same, and the court stated that he would permit proof to be made in the manner provided by law upon said writ of inquiry, and would render such judgment as the pleadings and proof warranted, and that counsel for appellant could file an answer if he desired, and could move to set aside the judgment, and that his motion would be heard in its regular order; and counsel for appellant protested against the court rendering any judgment, and in not permitting him to file said answer and introduce testimony upon the merits involved, as though no default judgment had been rendered. A jury was waived, and, after hearing the evidence, the court rendered judgment against appellant, finding that the written instrument sued on had been executed by appellant and one John Mach, and that appellant and said John Mach are jointly and severally liable to plaintiff for the amount for which judgment was rendered. On the same day that said final judgment was rendered, to wit, on January 9, 1920, appellant filed his original answer, which consists of a general exception and a general denial, not verified by the affidavit of any one." Notwithstanding appellant had appeared in court at the previous term on November 3, 1919, more than 60 days prior to the default judgment and final judgment in favor of appellee, there is nothing in appellant's answer filed on January 9, 1920, which indicates any defense to this suit on a note, and, notwithstanding this case was on the assignment and regularly reached for January 9, 1920, it appears that appellant was not present, and his counsel stated to the court that he could not offer any evidence, unless the case could be postponed; but there is nothing in the record to indicate that appellant or his counsel applied for a postponement or continuance of the case."
Appellant's statement is misleading in several respects, and especially in his effort to make it appear that on February 17, 1920, the trial court rendered default judgment, and had it entered as of date January 6th and on February 17, 1920, rendered a final judgment and had it entered as of date January 9th. Appellant is probably misled by the date given by the clerk on which his minutes were actually written. In writing the minutes our clerks put at the top of the entry the actual date on which it is entered, and, notwithstanding the default judgment was taken on January 6th, and made final on January 9th, these orders were not written into the minutes until February 17th, and the clerk shows that the judgment is entered as of January 6th and January 9th, respectively. Furthermore, there is written into the body of the default judgment and into the body of the final judgment the date on which the court actually made the order. The transcript shows that on January 10, 1920, appellant filed his motion for a new trial asking the trial court to set aside the judgment rendered on the 9th day of January, 1920. With this record, we are sure that appellant will not seriously contend that on January 10, 1920, he filed a motion to set aside a judgment or order that was not made until the 17th day of February, 1920. Articles 1883, 1936, 1938; W. U. T. Co. v. Skinner, 60 Tex. Civ. App. 477, 128 S. W. 715; Delaware Ins. Co. v. Hutto, 159 S. W. 73; Order v. Noble, 174 S. W. 623; Davis v. Marshall, 25 Tex. 372; Shipp v. Anderson, 173 S. W. 598; Stringer v. Robertson, 140 S. W. 502.
Appellee objects to consideration of appellant's second assignment of error and presents the following counter proposition:
"In a suit on a note in writing, an answer consisting of a general exception and a general denial offers no defense, if the petition is good as against a general exception and the note is produced."
The following statement is also presented:
"Appellant makes no claim that appellee's petition is subject to a general exception, and the record shows said petition to be good as against a general exception. The judgment of the trial court shows that a default judgment was rendered on January 6, 1920 (the second day of the term), and thereafter was regularly reached on the docket of the court on January 9, 1920, and that plaintiff's cause of action is liquidated and proved by an instrument
in writing executed by appellant, and the default judgment shows that appellant applied at a former term of the court by his attorney, and filed and urged his motion to quash the service on him because of a defect in the sheriff's return, and failed to appear and answer at said January term, at which said default judgment was rendered, but wholly made default. In the statement of the facts offered at the hearing on the motion for a new trial, it was agreed that on the 9th...
