McKellar v. Lamkin

22 Tex. 244

Opinion

Roberts, J.

One of the defendants in error filed a plea in abatement, that he had not been served with a correct copy of the citation and copy of petition. Defendants below failing to appear when the cause was called, the court rendered judgment by default. It is contended, that, the plea having been filed, the court could not legally render a judgment by default.

It was the duty of the defendant, who had filed the plea, to be present to have the issue submitted, and support it with affirmative proof. It was not the business of the court to do it for him. (Hopkins v. Donaho, 4 Tex. Rep. 336.)

But the judgment is largely excessive, and must be reversed, and rendered for the correct amount.

Reversed and reformed.