Wood v. Smith

11 Tex. 367

• Court: Texas Supreme Court
• Decided: July 1, 1854
• Status: Published

Opinion

Wheeler, J.

The writ was properly quashed, under the ruling of this Court in the case of Burleson v. Henderson, (4 Tex. R. 49.) And it was also proper for the Court to give leave to amend the writ. (Cartwright v. Chabert, 3 Tex. R. 261.) Bnt the party does not appear to have availed himself of the leave given. Ho amendment appears to have been made. And the Court proceeded to give judgment final, when the writ, served upon the defendant, had been quashed, and had not been reinstated by amendment, and he had not appeared, or answered, to the action. This was error.

There was no service upon the defendant King. The judgment is therefore erroneous as to both defendants: one only prosecutes this writ of error; hut, as the judgment is upon a joint obligation, and is entire, the reversal will operate as to both defendants. (Burleson v. Henderson, 4 Tex. R. 49.) The judgment is reversed and the cause remanded.

Reversed and remanded.