Crain v. Griffis , 14 Tex. 358 ( 1855 )

Wheeler, J.

It has been the constant practice under the Statute, (Hart. Dig. Art. 678,) to render judgment by default, where there has been a written waiver of process and accept-ance of service, by the defendant, without other proof of its genuineness, than its having been filed among the papers of the ■suit; and judgments so rendered have been constantly affirmed by this Court, without other proof of such filing than is afforded by the record in this case. The question of the sufficiency •of such service, and the regularity of judgments appearing to have been so rendered, has long been considered as settled in the practice of the Court. The objection now urged to the sufficiency of the service, was early considered; but as the •question was never argued by counsel, no written Opinion was delivered. And we deem it unnecessary now, to enter upon a vindication of the correctness of the practice. We think it warranted by the law, and if it be even doubtful whether it is founded in a proper construction of the Statute, upon such a •question, we should hesitate to disturb a practice so long pursued and acquiesced in. We think the danger of abuse, suggested, is rather imaginary than real; and that to adopt the practice contended for, would be to interpose unnecessary ob- ■ stacles, in the way of getting judgment against defendants who Rave no defence ; and who refuse to appear and answer, in the hope of finding some flaw in the proceedings, by which to reverse the judgment on error, and thus delay the plaintiff in the recovery of his just demands.

The remaining objection to the judgment, we do not think well taken. The present is unlike the case of Burleson v. Henderson, (4 Tex. R. 49.) There the names of two of the defendants were omitted in the writ, which did not describe truly the names of the parties to the suit. Here, there is the omission merely of the surname of one of the defendants, whose name is given in full in the petition, and who was duly served with a copy of the petition and writ. If considered as a variance between the petition and writ, by the practice in Common Law Courts, it was matter of abatement or special demurrer; (1 Chit. Pl. 450, 451, and notes, 11 Am. from 6 London ed.;) if a misnomer, it must have been pleaded in abatement; in either case, it was the proper subject of amendment. (Cartwright v. Chabert, 4 Tex. R. 261.) The objection does not go to the validity of the process, as in the cases cited by counsel; and consequently, it must have been taken by plea or exception, and cannot be assigned as error. To reverse judgments, on error, for defects of this character, because the defendant has failed to appear, when if he had appeared and taken the objection, the defect might have been immediately cured by amendment, would be to give a defendant a legal advantage for his refusal to appear, which he could not have obtained if he had appeared and taken the exception at the proper time. Such a practice would justly subject this Court to the imputation of being technical beyond what is written in the books containing the Common Law practice • or rather, of reversing judgments on error, upon grounds of objection which are not entertained in other appellate Courts; and which ought not to be entertained on principle. If the objection goes to the validity of the process, aud it is void, the defendant is not required to obey it; hut if it is merely defective, but not void, it brings the defendant into Court; and if then he does not take his exception at the proper time, he cannot afterwards be heard to urge it, either in the District Court or on error in this Court. The process in this case was merely defective, but not void; and the objection not having been taken at the proper time, it cannot avail the defendant on error. The judgment is affirmed.

Judgment affirmed.