Nasworthy v. Draper
| Decision Date | 05 December 1894 |
| Citation | 28 S.W. 564 |
| Parties | NASWORTHY v. DRAPER.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Action by Frank Draper against John R. Nasworthy and another on a promissory note. A demurrer to the answer of defendant Nasworthy was sustained, and he brings error. Reversed.
D. D. Wallace, for plaintiff in error. Walton & Hill, for defendant in error.
The action in this case was upon a note charged to have been executed by plaintiff in error, John R. Nasworthy, and William Lackey. Nasworthy answered by general denial, and a plea of failure of consideration not verified by affidavit. No answer was filed by Lackey, and judgment by default was rendered against him, and judgment was also, at the same time, rendered against Nasworthy. The court below sustained the general demurrer to Nasworthy's answer setting up the failure of the consideration of the note.
The facts stated in the answer constitute, if true, a good defense in part, and the only objection in the mind of the court when it sustained the demurrer evidently was the fact that the answer was not sworn to, and this ruling of the court is assigned as error. In considering the legality of the judgment by default against Lackey, it is well to say that the appellee, in his brief, suggests that the writ of error in this cause was sued out for delay, and asks that the judgment be affirmed, with damages. This request opens up the entire record for error, and although none is assigned on the fact that it does not appear, from any citation that accompanies the record, that Lackey was served, we make the failure of the record to so show the ground of reversal as to him. There is a statement in the judgment that Lackey was duly served, but it has been expressly held that this does not dispense with the necessity of showing a valid service of citation, independent of such recital, in order for the judgment to be held good on appeal. Carlton v. Miller, 2 Tex. Civ. App. 623, 21 S. W. 697, and cases there cited.
The remaining question is, did the court err in sustaining the general demurrer to the answer? The plea of failure of consideration was not a nullity for the want of an affidavit, and the absence of the oath of the defendant filing the plea as to its truth could be dispensed with and waived by the plaintiff. Williams v. Bailes, 9 Tex. 63; Crayton v. Munger, Id. 291; Rankert v. Clow, 16 Tex. 11; Powers v. Caldwell, 25 Tex. 353; Drew v....
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