Janes v. Langham

Citations

• 33 Tex. 604

Syllabus

<p>1. In an action on notes, the defendant’s counsel had prepared a meritorious answer and had handed it to the clerk of the district court; but before it was marked filed, the same counsel withdrew it for the purpose of filling certain unimportant blanks in it. On default day, a-storm prevailing and the defendant’s counsel being in bad health, he was not present in court when the case was called; but the clerk apprised the ■court of the preparation and temporary withdrawal of the answer, and an attorney present proposed to file aii answer instanter for the absent counsel. But the court, at the. instance of plaintiff’s counsel, directed a judgment by default with writ of inquiry; at which stage of the case the defendant’s counsel appeared, and without objection by the court or the opposite party, placed his answer on file. Under direction of the court., howeyer, the writ of inquiry was executed, and judgment final rendered for the prmcipal.and interest of the notes. On the same day the defendant’s cou.nscl moved to set aside the verdict and judgment, and on the next day amended the motion and accompanied it with affi- . . davBs setting forth merits and the tacts in extenso; but the motion was overruled, and the defendant prosecutes error. Held, that the district court erred in entering the judgment by default; and that the answer should, under the circumstances, have been regarded as on file from the time it was in the hands of the clerk. Held jmther, that even if the default was properly entered, it was error, under the circumstances, to refuse to set aside the judgment and try the case, iipon the meritorious defenses alleged in the answer.</p> <p>3. Though questions of this character rest to a great degree in the discretion' . of the district courts, yet their exercise of that discretion must be held subject to revision in this court.</p>