Pierson v. Burney
| Decision Date | 01 January 1855 |
| Citation | 15 Tex. 272 |
| Parties | JOHN H. PIERSON v. GEORGE E. BURNEY. |
| Court | Texas Supreme Court |
Where the court commenced on the 6th of November, 1854, and the petition was filed on the 9th, and the answer was filed on same day, and there was judgment by default, the date of which did not appear, from which the defendant prosecuted this writ of error, the judgment was affirmed, the presumption being that the default was taken after the fourth day of the term, and that the answer was withdrawn at the time of the entry of judgment by default, or that the defendant failed to bring his answer to the attention of the court, in either of which cases he should have moved the court during the term to correct the mistake.
Error from Falls. The synopsis of this report recites everything that appeared from the transcript.
______________, for plaintiff in error. Suppose the answer filed in this case be construed by the court to have been a waiver of process (which is doubtful, McCoy v. Crawford, 9 Tex. 323), it certainly could not be considered a waiver, except from the filing of the answer. By Hart. Dig. art. 810, in order that cases can be tried at a particular term of court, it is necessary that the writ issued in such case should be served five days before court, exclusive of the day of service and the day of return. But if a writ should be served short of this time, and before return day of the writ, the service would still be good, but the case must be postponed until the second term thereafter. If the answer in this case was a waiver of process (and without which this court had no jurisdiction), then the greatest effect that could by law attach to that waiver was to make the case returnable and triable at the second term thereafter.
J. A. & R. Green, for defendant in error. There can be no doubt that the answer was a waiver of service, but the appellant contends that with an answer on file, judgment for want of it was erroneous. The actual fact, no doubt, was, that the answer was withdrawn after filing before judgment. The judgment for want of an answer after one had been filed, would seem to be sufficient evidence of its withdrawal.
The defendant was not bound to answer at that term of the court; but having answered, there can be no question that his answer was a waiver of process. It does not appear on what day of the term the judgment was rendered; but it doubtless was after the filing of the answer; for we cannot suppose the defendant...
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Empire Gas & Fuel Co. v. Noble
...a judgment shows upon its face to be valid, every presumption will be indulged in support of it. Look v. Henderson, 4 Tex. 303; Pierson v. Burney, 15 Tex. 272; Townsend v. Ratcliff, 50 Tex. 148. It is a general rule that, if one of several defendants pleaded over against a codefendant, asse......
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Paggi v. Rose Mfg. Co.
...Huntsville (Tex. Civ. App.) 151 S. W. 1114, London Assur. Corp. v. Lee, 66 Tex. 247, 18 S. W. 508; Hopkins v. Donaho, 4 Tex. 336; Pierson v. Burney, 15 Tex. 272; Lytle v. Custead, 4 Tex. Civ. App. 490, 23 S. W. 451. This suggestion, however, reaches the crux of the question under considerat......
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Gillaspie v. City of Huntsville
...called to the attention of the court. London Assurance Corp. v. Lee, 66 Tex. 247, 18 S. W. 508; Hopkins v. Donaho, 4 Tex. 336; Peirson v. Burney, 15 Tex. 272; Lytle v. Custead, 4 Tex. Civ. App. 490, 23 S. W. 451. Even had the appellant filed the plea in question before the judgment by defau......
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McElyea v. Parker
...would tend to the contrary inference. Everything must be presumed in favor of the judgment, which is not concluded by the record. Pierson v. Burney, 15 Tex. 272; Hopkins v. Donaho, 4 Tex. 336; 3 Freeman on Judgments (5th Ed.) § We answer "Yes" to question No. 1. 2. The Court of Civil Appeal......