60 S.W. 268 | Tex. App. | 1900
This suit was brought by appellee against appellant on an accident policy issued to William Foster, and assigned in part to appellee. Judgment by default, with writ of inquiry, was taken on appearance day for want of an answer. An answer, however, had been filed the day before, which seems to have been treated in rendering judgment by default as no answer, because it was not signed by appellant's attorney. Within two days after judgment was so rendered, appellant, through its attorneys, filed a motion to set it aside, which was overruled, and afterwards during the term judgment final was entered, from which this appeal is prosecuted.
We are of opinion that the court erred in refusing to set aside the judgment by default. The answer was prepared by appellant's attorneys, who resided in Dallas, and forwarded by mail to the clerk of the court at Fort Worth, accompanied by a letter signed by them requesting that it be filed in this case, which was accordingly done, as above stated. Evidently the failure of the attorneys to sign their names to the answer was a mere oversight, and should have been so treated by the court, since they were prompt in moving to set the default judgment aside, and by the facts stated in the motion, which was verified by affidavit, showed not only a reasonable excuse for their failure to prevent the default judgment, but also that appellant probably had a meritorious defense.
The case of Hemming v. Zimmerschitte,
That case, therefore, does not seem to us to be authority for holding that on the call of the appearance docket the court may treat an answer filed by direction of the defendant or his attorney as no answer, merely because the name of the defendant in whose behalf it is filed, or his attorney, is not signed to it, and render judgment by default for want of an answer.
We think the correct view is expressed in the opinion of Justice Gaines, in Boren v. Billington,
Reversed and remanded.