Wheat v. Davidson
| Decision Date | 31 December 1847 |
| Citation | 2 Tex. 196 |
| Parties | BAZEL WHEAT v. THOMAS G. DAVIDSON |
| Court | Texas Supreme Court |
Writ of Error from Fort Bend County.
Judgment by default may be taken, not only on the second day of “the meeting of the court,” but on any subsequent day before appearance or answer. [4 Tex. 305;6 Tex. 227.]
Three entire days must intervene between the respective days on which may be entered the judgment by default nisi and the final judgment.
Until final judgment shall have been entered after the expiration of three entire days after the interlocutory judgment by default, the answer ought to be received.
The plaintiff in error was defendant in the court below.
The process in that court was returned duly served at the term which commenced on the 19th day of September, 1846. On the 21st of the same month, being the third day of the term, judgment was taken by default; and on the 24th, being the sixth day of the term, and the defendant not having answered, a final judgment by default was taken. On the same day, but after the final judgment had been entered, the defendant's counsel offered to file his answer, which the court refused to entertain, and the defendant prosecuted this writ of error.
Sullivan, for plaintiff in error, contended:
1st. That the court erred in rendering judgment by default on the third day of the term, instead of the second. 2d. That even admitting the default was properly taken on the third day of the term, it was error not to have permitted the defendant to answer any time during the sixth day of the term.
Herndon, for defendant in error, in reply to the first point, contended that the statute requiring judgments by default to be entered on the second day of the meeting of the court was merely directory, and did not prohibit the entry of such judgments after that day.
In reply to the second ground of error above assigned, he argued that the entry of the judgment final by default, being made on the fifth day after the meeting of the court, was in strict compliance with the statute, and the defendant, not having previously answered, could not be permitted to do so afterwards. He cited the cases of Hollis & Love v. Francois & Border, and O'Connor v. Towns, 1 Tex. 118 and 107.
Two questions are presented for our consideration. 1st. Was it allowable to take judgment by default on the third day of the term? and 2d. Judgment by default not having been taken on the second day, was it lawful to enter judgment final on the sixth day of the term?
The answer to these questions must depend upon the true import and meaning of sections 23 and 24 of the act of 1846, “to regulate proceedings in the district courts.” Acts 1846, 369, 370.
The 23d section provides for taking judgment on the second day of the meeting of the court; and the 24th section provides for making “such judgment by default” final, “if the defendant does not file his answer before the fifth day after the meeting of the court.”
The meeting of the court will be presumed to be on the first day of the term, when, as in the present case, it does not otherwise appear from the record.
Upon the first question, we concur in the view presented by the counsel for the defendant in error. We think that the omission or inability of the plaintiff to ask, or the court to enter judgment on the second day, should not preclude him from afterwards obtaining it at any time before the appearance of the defendant. We do not think the expression in the statute of the second day was intended as a prohibition as to any subsequent day, since such a construction would be to defeat the manifest intention of the statute, which was, to enable the plaintiff to recover judgment against a defendant who should refuse or neglect to appear and answer. And the rule is, that “the real intention when actually ascertained will always prevail over the literal sense of terms.” 1 Kent, 462. And surely it ill becomes a defendant to complain that greater favor and indulgence were allowed him than, by the strict letter of the law, he was entitled to demand.
In the case of Hollis & Love v. Francois & Border, 1 Tex. 118 (), this court decided that judgment final, by default, cannot be taken before the sixth day of the session. There the interlocutory judgment had been taken on the second day of the term. Had that been done in this case, the judgment would have been regular and conformable to that decision. Then the defendant would have had three entire days between the interlocutory and final judgment, within which to answer. But two, however, were allowed him; and the question is, was this regular and legal?
By the terms of the 24th section, “such judgment by default” is meant a judgment taken, as provided in the preceding section, on the second day, and bearing a certain and definite relation to the final judgment. In that relation the material circumstance is time; and that is material only as securing a right to the defendant; that is, the right of a certain time after a default nisi within which to answer; and agreeably to the decision referred to, that time is three entire days between the days on which may be rendered the interlocutory and final judgment.
Had not the object been to give time to answer after a default nisi, why did the law fix the second, rather than the...
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