Chrisman v. Davenport

21 Tex. 483 | Tex. | 1858

Roberts, J.

The judgment by default in this case was excessive, and after the petition and bond for writ of error had been filed, and before the transcript was returned into this Court, the counsel for plaintiffs below filed in the District Clerk’s office, in vacation, a remittitur of such excess, signed by themselves as attorneys for plaintiffs. All which appears in the transcript. Did that cure the error in the judgment ? The general doctrine is that a debt must be released by an instrument as solemn as that by which it is created. In pursuance to that rule our Statute has provided for curing the errors in certain bonds and in verdicts exceeding the demand claimed in the .suit, by filing in vacation a deed of release executed by the party in whose favor the bond or judgment is excessive. [(Hart. Dig. Art. 787.) Under this Statute the error would be removed absolutely by filing the deed at any time before the cause was removed from the District Court. That Statute does not literally include a judgment by default. But if it should be held in its spirit to apply equally to an excess upon default as upon a verdict, then the release is not, by the plaintiffs' deed, as required by the Statute, and therefore they cannot claim that the act of their attorneys operated ipso facto, as a removal of all error from the judgment. It has been the practice of this Court to treat the release, of excess on a judgment, made by the party or his attorney of record, as equitably sufficient to protect the party against a collection of such excess ; and if it had been filed in this case before the defendant below was compelled to file his petition and bond for a writ of error to bring the case into this Court, defendant below would have had no good ground for bringing it here.

But after the defendant below had been thus compelled to take steps, onerous in their nature, to obtain what was then his rightful remedy, he should not now be visited with costs and damages for pursuing it.

Judgment is reformed and rendered at costs of defendants in error.

Judgment reformed and rendered.