Pierson v. Burney

Wheeler, J. The defendant was not bound to answer at that Term of the Court; but having answered, there can be no question that his answer was a waiver of process. It does not appear on what day of the Term the judgment was rendered ; but it doubtless was after the filing of the answer; for we cannot suppose the defendant would have done so idle a thing as-to file an answer after final judgment had been rendered against him, without at the same time moving to set aside the judgment. The answer must either have been withdrawn, or not brought to the attention of the Court. This, at least, must be the presumption. Everything must be presumed in favor of the judg [274] meat, which is not concluded by the record. Plence, we must presume that the answer was withdrawn, or that counsel failed to bring it to the attention of the Court, rather than that the Court improperly gave judgment by default notwithstanding the answer. In neither supposition can the fact, that there was an. answer on file in the case, afford a ground for' reversing the judgment. Eor if it was withdrawn, it is clear, the judgment was rightly rendered ; and, though not withdrawn, yet, if the defendant suffered judgment to be rendered against him, without bringing his answer to the attention of the Court, and suffered the Term to elapse, without moving the Court to correct the mistake, he cannot take advantage of it on appeal or writ of error. (Hopkins v. Donaho, 4 Tex. R. 336.) We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.