Statement.
On Sеptember 24, 1920, S. S. Key sued C. M. Cauble, in the county court of Tom Green county, claiming a balance due him by Cauble of $470.50, under a verbal contract to work on Cauble’s ranch. He did not allege the residence of defendant, b,ut instead alleged that he was “at least temporarily in Tom Green county, Tex., where service may be had upon him.” Defendant was served with process in Tom Green county on November 14, 1921, and, failing to appear or answer, judgment by default was rendered against him for the amount sued for, on Jаnuary 3, Í922. On March 31, 1922, at the same term of said court, defendant filed his amended motion to set aside said judgment aijd grant him a new trial, which wаs, on the same day, overruled. The case is before us on writ of error under assignments of error and bills of exception.
Opinion.
There is no statement of facts. The bills of exception undisputedly show that on the trial the plaintiff was the only witness, and that he was not sworn. By his first and fifth assignments plaintiff in error contends that, being an unliquidated demand, this does not comply with article 1939 of the Eevised Civil Statutes, which rеquires the court, in such cases, to “hear evidence as to the damages and shall render judgment therefor,” and that the trial court therefore committed fundamental error in his failure to comply with the law.
The defendant in error urges that, in the absencе of a statement of facts, this court is not authorized to go into the sufficiency of the evidence upon which the original judgmеnt was rendered. This has been repeatedly held by the appellate courts, and we are not to be understood as deciding to the contrary in the case before us. The question here, however, is not one of the sufficiency of evidence or of its admissibility, but rather whether the trial court complied with the law in hearing any evidence at all. “Testimony” has been defined as a statement'made by a witness under oath in a legal proceeding. 38 Cyc. 248; 4 Words & Phrases, Second Series, p. 891; 24 Cyc. 2410. We think that the administration of the oath by a competent 'officer is a fundamental and essential requirement to give testimony, its binding force. Thе Constitution (section 5, art. 1) clearly implies that such is a prerequisite to the giving of evidence. Certainly no one should be allоwed to invoke the aid of the courts of the lanjl to litigate his rights, procure relief through unsworn testimony, and, if such were false, be immunе from punishment. True, it has been held by the Supreme Court of the state that where a party sits and allows an unsworn witness to testify without objection, he thereby waives such irregularity. Trammell v. Mont,
By his second assignment plaintiff in error complains that plaintiff below did not comply with article 1S27, Revised Statutes of 1911, in thаt he failed to-allege the residence" of the defendant, or that same was unknown to him. Article 1827 provides:
“The petition shаll set forth clearly the names of the parties and their residences, if known, with a full and clear statement of the cause of action, etc.”
On i!his point plaintiff’s petition alleged that the defendant “is at least temporarily in Tom Green county, Tex., where service may be had upon him.” Plaintiff should have complied with the statute, but his -failure to do- so in this instance we do not considеr fatal. His allegations were sufficient to enable the clerk to issue citation to the proper county, as required by articles 1850 and 1852, Revised Statutes 1911, and the defendant was duly served in that county. This assignment is overruled.
Plaintiff in error also complains that the citation should have been accompanied by a certified copy of the petition because he was а nonresident. We think there is no merit in this contention. Plaintiff’s allegation was that he was, when the suit was filed, to be found in Tom Green county, and he was later found and duly served there, hence it was not necessary that a certified copy be attached.
In the fоurth assignment plaintiff in error urges that the trial court erred in overruling his motion to set aside-the judgment, in that the proof showed that he hаd made a bona fide effort to reach San Angelo to' defend said suit, but was prevented by- circumstances beyond his contrоl, and that his default was not due to his own carelessness. The trial court evidently found that he did not show proper diligence to appear in time. We think that is true. He was served in Tom Green county November 14th, some 48 days before return day. He employed nо counsel, and did not leave his home in a distant county until a day before court met. He did not, when delayed en - route, seek tо employ counsel at San Angelo until, it seems, default judgment had already been rendered against him and then, so far as the record shows, took no diligent steps to protect himself. His motion to set the judgment aside seems not to have been filed until late in Mаrch. Under such circumstances we think he clearly failed to show diligence, and was not entitled to have the default judgment set аside. The granting of a new trial on this ground was a matter within the discretion of the trial court, and we do not think that court abused its discretiоn in this in-stance.
We- think the plaintiff in error has shown no such diligence as to excuse his* default at the time of the (rial, and that he is entitled, on a new trial of this cause, only to have the law complied with as to the legal evidence required under article 1939 оf the Revised Statutes of 1911, and that plainr tiff below should not have cast upon him again the burden of the whole case. Western Uniоn Tel. Co. v. Skinner,
Because of the errors committed, we have concluded that the judgment should be reversed, and the cause remanded, with instructions that the trial court permit the plaintiff, if he so desires, to introduce evidence as provided in article 1939 of the Revised Statutes of 1911; and it is so ordered.
Reversed and remanded, with instructions.