| Tex. | Dec 15, 1866
—This is a judgment by default rendered in the District Court of Guadaloupe county, against Neill, the plaintiff in error, and one William M. Bust, who does not join in prosecuting the writ of'error.
It is submitted by defendant in error with a suggestion of delay.
Heither of the defendants in the court below were served with process. Bust, on the 8th day of October, 1860, by indorsement on the petition, acknowledged service, and waived the issuance of process.
A paper is found in the record with no file-mark on it, which reads as follows:
“J. M. Baker, administrator, having instituted suit on a note given by A. Neill, William M. Bust, and William S. Read, for $950, due 1st March, 1860: How I, said Neill, hereby acknowledge service of said suit, and waive all process, this 8th April, 1860. (Signed) A. Neill.”
This paper is relied on as a waiver of the issuance of process, and acceptance of service in this case by the appellant, Neill. We are of the opinion that such is not its legal effect.
There is no ambiguity in this paper, its terms are clear and distinct, and its meaning is plain and unmistakable.
We are aware of no rule of construction authorizing us to give it any other signification than that derived from the clear import of its terms. The plaintiff in error, Neill, in t¡his paper, waives the issuance of process in a suit which, previous to its date, had been instituted by J. M. Baker,
We certainly cannot presume that Neill, the plaintiff in error, when he expressly states in this paper that the suit in which he waived service had already been instituted, intended to waive service in a suit thereafter to be instituted. Nor can we presume that when he waives service of a suit on a note for $950, that he intended it as a waiver in a suit brought on two notes, amounting in the aggregate to nearly twice that amount. If the language of this waiver were of doubtful import, and anything left to be supplied by construction or presumption, we might well presume in favor of the correctness of the judgment; but such is not the case, it is full and explicit, and nothing is left to presumption. Because there was no service of process on.plaintiff in error, Neill, and no waiver of service by him, the judgment is erroneous, for which it. is reversed, and the cause remanded for further proceedings. The judgment, being entire, is also reversed as to the defendant, Rust, who has not joined in prosecuting the writ of error.
Reversed and remanded.