Court of Civil Appeals of Texas, El PasoFeb 12, 1931
35 S.W.2d 1115 (Tex. Civ. App. 1931)

No. 2494.

February 12, 1931.

Error from Brewster County Court; C. D. Wood, Judge.

Action by O. M. Shaw against J. A. Whitfield and others. To review adverse judgment, plaintiff brings error.


John Perkins and Mae M. Ament, both of Alpine, for plaintiff in error.

Van Sickle Fisher, of Alpine, for defendants in error.

This is a suit by Shaw against Guy S. Gibson, J. A. Whitfield, and J. M. Turner.

The only complaint here made of the judgment of the court below is the denial of fore-closure against Whitfield of a chattel mort gage.

The record discloses due service upon Whitfield but no answer filed. The judgment recites his appearance in person and by attorney "and the matters of fact as well as of law were submitted to the Court without the intervention of a jury." The judgment also recites "the plaintiff stated in open court he was not seeking any judgment against J. A. Whitfield, and J. M. Turner."

The first two propositions assert that in the absence of pleading filed by Whitfield, the court was without jurisdiction to render judgment in favor of Whitfield denying plaintiff foreclosure of the chattel mortgage. The failure of Whitfield to file an answer presents no jurisdictional question. Such failure entitled plaintiff in error to judgment by default (article 2154, R.S.) against Whitfield, but this right he waived by proceeding to trial without taking advantage of Whitfield's default in answering. 34 C.J. 177; Looney v. Linney (Tex.Civ.App.) 21 S.W. 409; W. T. Rawleigh Med. Co. v. Mayberry (Tex.Civ.App.) 193 S.W. 199.

Certainly the matter presents no error in view of the fact, as shown by the recitation in the judgment, that plaintiff in error in open court stated "he was not seeking any judgment against J. A. Whitfield."

Complaint is also made of the admission of certain evidence offered by Whitfield. The record shows no bill of exception to the admission of the evidence.

Furthermore, the admission of the evidence could not possibly be reversible in view of the admission by plaintiff in error in open court that he was not seeking any judgment against Whitfield.

This disposes of all questions presented in the brief.