190 S.W. 235 | Tex. App. | 1916
In the judgment it is recited that the plaintiffs and Groves appeared by their respective attorneys —
"but the defendant F. M. Wood failed to appear, either in person or by attorneys; and a jury being waived and all parties present announced ready for trial, and the matter of law as well as of evidence and pleadings being submitted to the court, the court, after hearing the evidence, law, and argument of counsel, is of the opinion that plaintiffs ought to recover of the defendant, and that J. M. Groves ought to recover against F. M. Wood on their cross-action herein."
It is Insisted that it appears from the recital just set out that the judgment against Wood was by default, and that it should be set aside in so far as it is in favor of plaintiffs, because, Wood having filed an answer to their suit, such a judgment against him was unauthorized, and that it should be set aside in so far as it is in favor of Groves, because it was rendered in the absence of notice to Wood of Groves' cross-action against him.
If the judgment in plaintiffs' favor should be construed as one by default, it would not follow that Wood's contention that it was erroneous as to him should be sustained, because he had filed an answer to their suit. It does not appear from anything in the record sent to this court that the attention of the trial court was called to the fact that he had filed an answer, or that he asked that the judgment be set aside at the term during which it was rendered. It has often been held that under such circumstances a judgment by default will not be disturbed. London Association Corporation v. Lee,
In London Association Corporation v. Lee, *236 cited above, the Judgment was by default, when an answer was filed. The cause was before the appellate court on writ of error as this one is. The Supreme Court said:
"There is nothing in the record to show that the defendant called its pleading to the attention of the court or insisted upon their consideration, or asked that the judgment be set aside at the term during which it was rendered. It was presumptively in court after it had answered, and its duty was to look after its interest in the cause. It neither objected to the interlocutory judgment by default, nor appeared to look after the case when before the court upon writ or inquiry. This court has frequently held that, under such circumstances, it will presume that the defendant waived an answer and the judgment will not be disturbed."
In Lytle v. Custead, another of the cases cited above, the Court of Civil Appeals said:
"One of the errors assigned is the action of the court in rendering a judgment by default against defendants when their answer was on file. This assignment is untenable. Something more is required of a defendant than the mere filing of an answer. He is then presumed to be in court, and ready to see his rights protected, to call the attention of the court to his answer, and demand proof of plaintiff's claim."
As supporting his view of the law Wood cites Ryburn v. Nail,
Wood's contention with reference to the recovery had by Groves against him is that same was unauthorized because it "appears of record" that "there was never any process of citation issued or served" on him, and that "there was never any appearance by" him "to answer the cross-action." It does not so appear in the record sent to this court. On the contrary, the record here is silent as to whether Wood had notice of the filing of the cross-action or not. But treating the judgment in Groves' favor as one by default, as we think it should be treated, it should be reversed, notwithstanding the silence of the record, if, to authorize it, Wood must have had notice of the filing of the cross-action; for the rule is that to support a judgment by default the record must show affirmatively, either service of process on the defendant, a waiver by him of such service, or an appearance by him in answer to the adverse party's suit. Bates v. Casey,
It follows from what we have said that we are of opinion the judgment should be affirmed in so far as it is in favor of the plaintiffs against Wood and Groves, and reversed in so far as it is in favor of Groves against Wood. It will be so ordered, and the cause will be remanded for a new trial as between Wood and Groves.
In the oral argument on the submission of the cause it was urged on behalf of Wood that if it was determined that the judgment was erroneous in so far as it was in favor of Groves, it should be set aside, not only in that respect, but also in so far as it was in favor of plaintiffs. The issue between the plaintiffs and the defendants Wood and Groves was one of title to the land. The issue between Wood and Groves was as to the right of the latter to recover on the contract of the former warranting the title. Both Wood and Groves having had their "day in court" on the issue between them and plaintiffs, we see no reason in law, why the judgment disposing of that issue should be disturbed; and, without disregarding the rules applicable (rule 62a [149 S.W. x] for the government of Courts of Civil Appeals; Hamilton v. Prescott,