Metz v. Bremond

13 Tex. 394 | Tex. | 1855

Hemphill, Ch. J.

This was a suit on several notes of hand, in which judgment was given by default against the plaintiffs in error.

Fourteen grounds have been assigned for reversal, amounting in substance to this, that there was no sufficient service of process and that the judgment is excessive.

On the first citations issued the parties respectively acknowledged service in writing over their own signatures. This acknowledgment appears to have been written on the citation. Subsequently other citations were issued and served on the parties by the Sheriff, but not until after the return day of the Term. What was the inducement to the issue and service of the second citations has not been explained, and certainly the necessity for such citations is not apparent. The object of service is to give legal notice of the suit, that the party may, if he will, be heard in his defence. This is accomplished by his acknowledgment of service, or, in other words, by his acknowledgment that he has had notice, and his implied admission of the legal effects of actual service. The acknowledgment of service appearing on the process in this case is a full compliance with the provision of the statute, which requires the acceptance to be in writing, signed by the party, &c., and filed among the papers of the suit as a record. (Art. 678.)

On the second ground the plaintiffs in error contend that by calculation it will appear that the amount due at the date of the judgment was two thousand eight hundred and forty-nine dollars, instead of two thousand nine hundred dollars and forty-four cents as assessed by the Court. If there be any such mistake or miscalculation as alleged, it should have been corrected below, where it could have been done with less inconvenience and expense to the parties. If we were satisfied, however, that such error existed, the judgment would be reformed so as to accord with the facts. But the aggregate amount is to be ascertained by the addition of the principal amounts with interest on the several notes. The plaintiffs in error have furnished no estimate of the several items of interest, so as to show a mistake in fact, and from such attention as we have been enabled to give to the matter, it appears that the judgment is for too small instead of being for too large an amount.

Judgment affirmed.