Neill v. Baker

Citations

• 28 Tex. 345

Syllabus

<p>Judgment by default on two notes, one for $950, the other for $800, taken against two defendants in a suit instituted on the 10th of April, 1860. Writ of error prosecuted by one defendant, who was not served with process, but as to whom the following instrument is relied on as a waiver of process and acceptance of service, to wit: “ J. M. B., having instituted suit on a note given by A. N. and two others, for $950, due 1st March, 1860, now I, said A. bf., hereby acknowledge service of said suit, and waive all process, this 8th April, 1860. Signed, A. N.” The case being submitted in this court, with a suggestion of delay, it is held, that the instrument above set out cannot be taken as a waiver of process or acceptance of service in this suit, because, first, it clearly imports that the suit to which it relates had already been instituted at its date, whereas this suit was not instituted until two days thereafter; and, secondly, this suit is founded on two notes amounting to nearly double the amount of the single note to which alone the instrument has reference. That, the language of the instrument being so clear as to leave no room for construction or presumption, this court is precluded from indulging the ordinary presumption in favor of the correctness of the judgment. Wherefore, for want of service of process on the plaintiff, or waiver by him in lieu thereof, the judgment must be reversed, not only as to him, but also, being an entirety, as to his co-defendant, although he had properly accepted service, and had not joined in the writ of error.</p>