Bates v. J. F. Evans & Co.

Opinion by Willson, J. §211. Amendment of petition, not permissible after a judgment by default. It is not permissible for the plaintiff to amend his petition after he has taken a judgment by default, without first having the judgment set aside. But this objection to an amended petition cannot be entertained when made for the first time in the appellate* court. [Portwood v. Wellburn, 33 Tex. 713; Tullis v. Scott, 38 Tex. 537.] §212. Admission of principal binds sureties. This was a suit upon a written obligation against.a principal and his sureties to recover money alleged to be due thereon. Plaintiff read in evidence, over the objection of defendants, an instrument in writing, signed by the principal, admitting that he was indebted to the plaintiff on the contract sued upon, the amount claimed in the suit. Held, that this instrument did not supersede the original obligation, but was merely an admission of the indebtedness sued for, and as such was competent evidence not only against the principal, but against his sureties also. [Abbott’s Trial Ev. 474; Brandt on Sure. & Guar. 656.] Affirmed.