Legal Opinion

Perry v. Rohde

Texas Supreme Court

Decided July 1, 1858PublishedCited by 5 opinions

Error from Fayette. Tried below before the Hon. James H. Bell. This was an action commenced before a Justice of the Peace, by the defendant in error against the plaintiff in error, on a note for $82 28. Citation was served on the defendant Perry on Monday, the 30th day of April, which was only four days before the return day of the writ, to wit: On the first Saturday in May, 1855. The defendant did not appear, and judgment by default was rendered by said Justice.

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Error from Fayette. Tried below before the Hon. James H. Bell. This was an action commenced before a Justice of the Peace, by the defendant in error against the plaintiff in error, on a note for $82 28. Citation was served on the defendant Perry on Monday, the 30th day of April, which was only four days before the return day of the writ, to wit: On the first Saturday in May, 1855. The defendant did not appear, and judgment by default was rendered by said Justice. The case was taken by certiorari to the District Court, and upon the trial the defendant contended in limine that the original…

1Opinion of the Court

Hemphill, Ch. J.

The only objection to the judgment before the magistrate, (which was brought up by certiorari,) is that service was not had on defendant five full days (exclusive of the day of service and return) before the trial. The defendant did not appear, and judgment was entered by default.

The magistrate might and ought to have refused to proceed until the succeeding Term of his Court, and the error in thus proceeding, or the defect of service, is good ground for the certiorari. The defendant may have supposed that the Court would not act until service was perfected, and that such would…

2Cited by5 opinions

  1. Thomson v. BishopTexas Supreme Court · 1867
  2. Evans v. Southern Railway Co.Mississippi Supreme Court · 1896
  3. Irwin v. DavenportTexas Supreme Court · 1892
  4. Sheldon v. City of San AntonioTexas Supreme Court · 1860
  5. Boaz, Marklee & Co. v. PaddockCourt of Appeals of Texas · 1877

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