Rankin v. Filburn & Ivers

Court of Appeals of Texas

Rankin v. Filburn & Ivers

1 White & W. 440

CourtCourt of Appeals of Texas

DecidedMarch 23, 1881

DocketNo. 1094, Op. Book No. 2, p. 459

StatusPublished

This text of 1 White & W. 440 (Rankin v. Filburn & Ivers) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Rankin v. Filburn & Ivers, 1 White & W. 440 (Tex. Ct. App. 1881).

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Opinion

Opinion by

White, P. J.

§ 797. Judgment• by confession; where made under power of attorney; affidavit, etc.,, not necessary, when, etc. Appellant, after being sued and served with citation in the suit, authorized an attorney, by power of attorney, to appear and confess judgment in favor of appellees for the amount of their claim. The attorney appeared and filed his power of attorney in the cause, and confessed the judgment, but there was no affidavit made of the justice of the debt, and no recital of the contents of the power of attorney was made in the judgment. Held, articles 13-17 and 1318 of the Revised Statutes must be construed [441]*441together, and they have reference solely to cases where parties not served with process confess judgment through an attorney. In this case the defendant had been served with citation, and after such service had executed the power of attorney authorizing his attorney to appear and confess judgment, and it was not necessary to the validity of such judgment that the power of attorney should be acknowledged or proved for record, or its execution proved, nor that its contents should be recited in the judgment, nor that an affidavit of the justice of the plaintiff’s debt should be made and fifed in the case. [Chambers v. Hodges, 23 Tex. 104; Merritt v. Clow, 2 Tex. 582; Flannagan v. Brunner, 10 Tex. 257; Gerald v. Burthee, 29 Tex. 202; Schroeder v. Fromme, 31 Tex. 602.]

March 23, 1881.

§ 798. Excessive judgment; cleminimis, etc. ¡remittitur. The judgment was excessive to the amount of §1.14. Held, the maxim de minimis non curat lex might well be invoked, but inasmuch as defendants in error have entered a remittitur here, the judgment will be reformed so as to give the plaintiff in error the benefit of the remittitur without’ depriving the defendants in error of their right to recover the costs of this appeal. [Wright v. Bonta, 19 Tex. 385.]

Affirmed.

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Opinion by

White, P. J.

§ 797. Judgment• by confession; where made under power of attorney; affidavit, etc.,, not necessary, when, etc. Appellant, after being sued and served with citation in the suit, authorized an attorney, by power of attorney, to appear and confess judgment in favor of appellees for the amount of their claim. The attorney appeared and filed his power of attorney in the cause, and confessed the judgment, but there was no affidavit made of the justice of the debt, and no recital of the contents of the power of attorney was made in the judgment. Held, articles 13-17 and 1318 of the Revised Statutes must be construed [441]*441together, and they have reference solely to cases where parties not served with process confess judgment through an attorney. In this case the defendant had been served with citation, and after such service had executed the power of attorney authorizing his attorney to appear and confess judgment, and it was not necessary to the validity of such judgment that the power of attorney should be acknowledged or proved for record, or its execution proved, nor that its contents should be recited in the judgment, nor that an affidavit of the justice of the plaintiff’s debt should be made and fifed in the case. [Chambers v. Hodges, 23 Tex. 104; Merritt v. Clow, 2 Tex. 582; Flannagan v. Brunner, 10 Tex. 257; Gerald v. Burthee, 29 Tex. 202; Schroeder v. Fromme, 31 Tex. 602.]

March 23, 1881.

§ 798. Excessive judgment; cleminimis, etc. ¡remittitur. The judgment was excessive to the amount of §1.14. Held, the maxim de minimis non curat lex might well be invoked, but inasmuch as defendants in error have entered a remittitur here, the judgment will be reformed so as to give the plaintiff in error the benefit of the remittitur without’ depriving the defendants in error of their right to recover the costs of this appeal. [Wright v. Bonta, 19 Tex. 385.]

Affirmed.

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1 White & W. 440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rankin-v-filburn-ivers-texapp-1881.

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