Ellett v. Britton

6 Tex. 229

• Court: Texas Supreme Court
• Decided: July 1, 1851
• Status: Published

Opinion

Wheeler, J.

The court erred in giving judgment by default when there was an answer in which was brought to the knowledge of the court. The case of Moore v. Janes, just decided, disposes of this ease upon the first ground of error assigned.

Tlie remaining objections to the judgment are not well taken. The note sued on is the promissory note of the defendant, upon which the action may well he maintained, and the stipulation embraced in it respecting the intended effect of its payment does not change the nature of the undertaking of the maker or affect the plaintiff’s right of action.

Tlie last objection taken to the judgment is not supported by the record. We cannot judicially know that Washington is in the State of Arkansas or that it is not in tills State, and it nowhere appears of record that the note sued on was made in that or any other foreign State.

Tlie judgment is reversed and the cause remanded for further proceedings.

Judgment reversed.