| Tex. | Jan 15, 1867
The petition in this case was filed on the 7th day of June, 1860.. The district court for the county in which the suit was instituted commenced its session on Monday, the 4th day of June, 1860. On the 7th day of
Defendants sued out a writ of error to this court, and assigned for error, 1st, that the original petition was not filed until the fourth day of the term of the court at which the judgment was obtained; 2d, that the amended petition averring the loss of the note, was not sworn to.
We shall notice only the first of these assignments. The defendants, by their acceptance of service, only waived the issuing of an original citation, and service of this and of a copy of the petition, in the manner prescribed bylaw. They did not waive any right which they would have possessed had service been perfected by the sheriff" in the usual way. They were still entitled to have until the fourth day after the meeting of the court to prepare and file their defenses to the action, and it was not at the option of the plaintiff to postpone their allowance of time from the beginning to any other portion of the term by merely filing the petition on some day subsequent to the beginning of the court. The defendants may have attended court on the first day of the term, and not finding, the case on the docket, or the petition on file, may have concluded that the suit would not be prosecuted against them at that term of the court.
We will suppose that the court had lasted for six weeks,
We think the proper practice in such cases is to file the petition at least by the first day of the term after the ackowledgment of service.
For the error of the court, in allowing the judgment by default, under the circumstances of this case, the judgment is reversed, and the cause
Remanded.