Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5. Page: 70
vii, 332 p. ; 22 cm.View a full description of this book.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
139-140 SUPREME COURT.
Burton v. Varnell.
of jurisdiction in tle District Court, is sufficiently answered by the decision of
this court in the case of Tarbox et al. v. Kennon, (3 Tex. R., 7.) We are of
opinion that there is no error in the judgment, and that it be affirmed.
Judgment affirmed.
NOTE 1S.-Informality or mistake in a sheriff's return may be corrected at any time under
the direction of the court even after the return has been quashed at the same term, because
of the informality or mistake. (Porter v. Miller, 7 T., 468.) The omission by the clerk of the
attestation clause of the citation may be cured by amendment after motion to quash. (Andrews
v. Ennis, 16 T., 45.)
NOTE 19.-Dean v. Duffield, 8 T., 235; Horton v. Wheeler, 17 T., 52; Cook v. Phillips, 18 T., 31;
White v. Leavitt, 20 T., 703; Payne v. Bentley, 21 T., 452; Shipman v. Allee, 29 T., 17.
NOTE 20.-Graham v. Roder, post, 141; Ellett v. Powers, 8 T., 113; Bridge v. Ballew, 11 T., 269;
Gouhenant v. Anderson, 20 T., 459.
BURTON V. VARNELL.
There was no service upon one of two joint defendants. The other defendant appeared, and
upon his confession judgment final was rendered against him without making any disposition
of the case as to the defendant not served: Held, There was no error.
The inhibition contailced in the latter part of the forty-seventh section of the act of 1846, to
regulate proceedings in the District Courts, against the rendition of more than one final
judgment in the s.lit is confined to the case stated in the former part of the section. It
means simply that judgment final by default shall not be taken against those who fail to
answer until the time of final judgment as to those who shall have answered. But it does
not make the taking of judgment final against those who fail to appear essential to the
right to proceed to judgment against those who shall have answered.
Error from Houston. T'ills suit was brought by tlhe defendant in error against
the plaintiff in error as tlie maker and one James Burton as the indorser of a
promissory note. There did not appear to have been any service upon Janles
Btinton, nor did there appear from the record to have been any final disposition
of the case as to him.
Tlle defendant, John J. Burton, appealed and confessed judgment, with a
stay of execution, and subsequently prosecuted this writ of error.
[14®] Thomas J. Jennings, for plaintiff in enror.
Miller, for defendant in error, suggested delay.
LIPSCOMB, J., did not sit in tils case.
WHEELER. J. It is objected that the court gave judgment final against tle
plaintiff in error without at the same time making a final disposition of the
case as to iis co-defendant.
In support of this objection we are referred to the 47th section of the act of
1846 to regulate proceedinigs in the District Courts, (p. 376, see. 47,) which
provides that: "Wherec there are several defendlallts in a suit, and some of
tlhemn appear and( answer, amil others make default, an interlocutor judgment
by default may be entered against those who do not answer, and the cause
may proceed against tle others; but only one final judgment shall be given in
the stit."
'The inhibition contained in thli section of more than one final jutdgmentl in
the suit is confined to tle case stated in thel preceding part of the section. It
means simply that judgment final by default shall not be taken against tlose
wilo fail to answer ittltil tOlie time of final jitctgment as to those who shall have
aliswered. But it does not make le takin' of judgment final against those
hlio fail to appear essential to tlhe rii lt to p)roeeed to jlllgmelnt against those
who shall have answered. And it lIas no reference to a n1olleproseqzi, discontiluatnce,
or dismissal as. to onle or more defendants, but only to the final jud,70
Upcoming Pages
Here’s what’s next.
Search Inside
This book can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Book.
Texas. Supreme Court. Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849, at Austin and a part of Galveston Term, 1851. Volume 5., book, 1883; St. Louis, Mo.. (https://texashistory.unt.edu/ark:/67531/metapth28569/m1/78/: accessed May 7, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; .