McKellar v. Lamkin
Texas Supreme Court
Error from Gonzales, Tried below before the Hen. Fielding Jones. Suit by defendant in error, against plaintiffs in error, upon a promissory note. One of the plaintiffs in error filed a motion, verified by oath, to quash the citation and service, because the citation served upon him required him to answer the petition of John L. McKellar. The copy of the citation alleged to have been served upon him, was filed with and asked to .he taken as a part of the motion.
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Error from Gonzales, Tried below before the Hen. Fielding Jones. Suit by defendant in error, against plaintiffs in error, upon a promissory note. One of the plaintiffs in error filed a motion, verified by oath, to quash the citation and service, because the citation served upon him required him to answer the petition of John L. McKellar. The copy of the citation alleged to have been served upon him, was filed with and asked to .he taken as a part of the motion. The sheriff’s return showed that the defendant had been duly cited. The following is the entry of the judgment:—“Came the plaintiff…
1Opinion of the CourtRoberts, J.
One of the defendants in error filed a plea in abatement, that he had not been served with a correct copy of the citation and copy of petition. Defendants below failing to appear when the cause was called, the court rendered judgment by default. It is contended, that, the plea having been filed, the court could not legally render a judgment by default.
It was the duty of the defendant, who had filed the plea, to be present to have the issue submitted, and support it with affirmative proof. It was not the business of the court to do it for him. (Hopkins v. Donaho, 4 Tex. Rep. 336.)
But the…
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