Gerald v. Burthee

29 Tex. 202

• Court: Texas Supreme Court
• Decided: January 15, 1867
• Status: Published

Opinion

Willie, J.

This was a suit commenced below by defendants in error against plaintiffs in error upon a promissory note. Service was accepted by indorsement on the petition more than five days before the commencement of the court, and on the fifth day of the term the petition was filed, and the plaintiffs in error confessed judgment for the full amount claimed in it. The case is now brought to this court by writ of error, and it is assigned, among other things, that the court erred in permitting a judgment by confession to be entered up without process, and without an affidavit having heen made as to the justness of the debt.

In the case of Flanagan v. Bruner, 10 Tex., 257, it was held, that if a defendant appear under process and confess judgment, the Judgment will be valid, whether there be an affidavit or not. That the statute, (O. & W. Dig., Art. 499,) when referring to appearance without process, meant without service of process; and that a waiver or acceptance is by law as effectual as actual service.

There was an acceptance of service in this case which took it out óf the requirements of the statute as to swearing to the justness of the debt, and the court did not err in permitting the judgment to be rendered without such affidavit. The judgment is

Aeeirmed.