Watson v. Miller Bros.

• Court: Texas Supreme Court
• Writing for the Court: Maltbie
• Citation: Watson v. Miller Bros., 5 S.W. 680, 69 Tex. 175 (Tex. 1887)
• Decision Date: 11 November 1887
• Parties: WATSON v. MILLER BROS.

5 S.W. 680

WATSON v. MILLER BROS.

Supreme Court of Texas.

November 11, 1887.

Commissioners' decision. Appeal from district court, Ball county; W. A. BLACKBURN, Judge.

On fourteenth of September, 1880, Miller Bros. filed their petition in the district court of Ball county, against Josiah Watson, as principal, and S. H. Bush, as indorser, to recover balance alleged to be due on a note given for a certain tract of land, and to foreclose vendor's lien. Watson had conveyed certain portions of the tract to different persons, retaining a part. W. H. Beard and several others to whom Watson had conveyed, were made defendants for the purpose of foreclosure. The petition was lost, and Miller Bros. filed an application for leave to substitute. On thirteenth of April, 1882, Montieth & Furman waived notice, stating in waiver that they represented all defendants except Bush, and petition was substituted on same day. On thirteenth of September Miller Bros. filed amended petition. On April 13, 1883, Montieth & Furman filed answers for all the defendants except Watson & Bush. On October 16th, Miller Bros. dismissed as to all of the defendants except Watson, and on the same day took judgment by default, for the balance alleged to be due on the note, against Watson, foreclosing the lien on that portion of the land that he had not sold. It does not appear that Watson ever filed an answer in the case, before this. On October 31st, court still being in session, Watson appeared, and filed a sworn motion to set aside the judgment by default, because to the best of his recollection he had never been cited in the case, and charging positively that he had no notice of the application to substitute petition, and that he had never employed any one to represent him or in any manner to appear in the case; that if he had been served with notice that the petition was to be substituted, he would have appeared and answered....