Heath v. Fraley

50 Tex. 209

• Court: Texas Supreme Court
• Decided: July 1, 1878
• Status: Published

Opinion

Moore, Chief Justice.

Some of the matters suggested in the motion in arrest of judgment, if properly presented and proved, might be a valid defense, in whole or in part, to the plaintiff’s action; but certainly they furnish no ground for arrest of judgment. Hor can we say that the court erred in overruling appellant’s application to set aside the judgment by default; for a man too old and infirm to ride ten miles to court without having to stop twice on the way to rest, or to be able to get to court before its usual time of meeting in the morning, though he started at daylight, who takes no steps to have an answer filed until he should reach the court-house on default day, thus exhibits so palpable a manifestation of gross negligence as deprives him of all right to complain of the refusal of the court to set aside the judgment, even if he had shown a meritorious defense, instead of merely asserting that he has one.

The citation, however, upon which the judgment is based fails to state the names of the plaintiffs to whose action appellant was required to answer, as is, in plain and direct terms, required by the statute. (Paschal’s Dig., art. 1431.) Owing to this defect in the citation, as has often been held by the court, (4 Tex., 52; 8 Tex., 108; 16 Tex., 46; 25 Tex., 583,) the judgment by default was improper and unwarranted

The judgment is reversed and the cause remanded.

Reversed and remanded.