Kennedy v. McCoy

46 Tex. 220

• Court: Texas Supreme Court
• Decided: July 1, 1876
• Status: Published

Opinion

Moore, Associate Justice.

In the case of Glenn v. Shelburne, 29 Tex., 125, it is held, that a defendant who has accepted service of the petition, and waived copy of the writ and all other process, does not thereby waive his right to defend the action, and has until the fourth day of the term to file his answer; and it was error, therefore, to render judgment by default, though service had been accepted, and copy of the writ waived by the defendant, more than five days before the commencement of the term at which the judgment was rendered, because the petition was not filed at least by the first day of the term.

The facts in this case are even stronger than in the case of Glenn v. Shelburne. In it, the default was not taken until more than four days after the filing of the petition. Here, the judgment by default was rendered on the day on which the petition was filed, which was more than a month after the commencement of the term.

The judgment is reversed and the cause remanded.

Reversed and remanded.