
    Montgomery v. Barnett.
    Where there is a confession of judgment it is not sufficient that the petition be filed during the term; it must be filed before the judgment is confessed or at the same time.
    Where the petition purported to have been filed on the 9th and tho judgment to have been entered on the 8th, the court would not presume in favor of the judgment that the date of the judgment was a clerical error.
    Where a judgment is confessed under article 770, Hart. Dig., the justness of the debt must be sworn to by the person in whose favor the judgment is confessed; it is not sufficient that the affidavit be made by attorney. (Note .‘33.)
    A confession of judgment is not a waiver of errors where the confession itself is not made conformably to law.
    The defendant himself and not merely third persons may take advantage of errors committed in the confession of judgment under art. 770, Ilart. Dig.
    Error from Bed River. Barnett sued Montgomery on a promissory note for $500. Tile petition purported to be filed on the 9th November, 1849. Oil the petition was indorsed, ‘’service of the within petition acknowledged.
    W. T. Montgomery.”
    And “I do hereby certify that the indebtedness of said Montgomery, as set forth in the within, is just aud correct. S. H. Morgan, Attorney.
    “Signed and sworn to this 9th November, 1849.
    W. II. Vining, Clerk.”
    Then followed the judgment: “In the District Court, November 8th,. A. D. 1849. This day came the plaintiff by attorney, and the defendant having duly acknowledged service comes into court and confesses judgment in this cause; wherefore it is considered by the court that the plaintiff,"Elias D. Barnett, have and recover of the defendant, William T. Montgomery, his debt, five hnndred and seventeen dollars and twenty-one cents, interest, besides all costs in this behalf expended, aud by consent execution is stayed six months.” On the 4th of October, 1851, Montgomery filed his petition for a writ of error. The errors assigned were—
    1st. No petition was filed when the judgment was rendered.
    2d. The justness of the debt was not sworn to by the person in whose favor the judgment was confessed.
    3d. There was no judgment confessed for any specific amount.
    4th. The judgment of the court did not correspond to the confession.
    
      Morrill and Dickson, for plaintiff in error.
    
      
      Young and Morgan, for defendant in error.
    I. In regard to the first reason assigned, it is wholly immaterial on what day tlie petition was filed, provided it was filed within the term of tlie court at which said judgment was rendered. The term is considered as one day, and a petition filed on any day during the term has the same effect as if filed on the first day of the term. (Starkie on Evidence, yol. 2, p. 783.)
    II. Every judgment is presumed to be correct, and every reasonable intendment must be made in favor of the correctness of a judgment. It is true that the clerk has written just above the copy of the judgment in the transcript, “in District Court, Fall Term, Nov. St-li, 1849.” This, in truth, constitutes no part of the record; it is only a memorandum made by the clerk, and tlie presumption of law that the court acted legally and in compliance with the statute contradicts tlie entry made by tlie clerk in the transcript that the judgment was rendered on the 8th November, 1849, and that the petition was filecl on the 9th November, 1849. (2 Tex. It., 594 and 297.)
    III. Tlie second assignment, that the justness of plaintiff’s claim was sworn to by plaintiff's attorney and not by plaintiff himself: It is true that the statute requires that the party in whose favor a judgment is confessed shall make affidavit that his claim is just. Now, to determine whether the affidavit made in this case is in compliance with the statute, we must inquire what was tlie object of the statute. It is evident that the statute in requiring the affidavit to> he made liad for its sole object the protection of tlie rights of third parties and not for the benefit of defendants.
    Then tlie object of tlie affidavit is to show that the claim is just and to prevent fraud. Now, can it be pretended that the affidavit of a disinterested party does not afford better evidence of the justness of the claim than tlie affidavit of the plain till', an interested party? It certainly does, if any regard is paid to the rules of evidence. The object of the statute, then, in this particular, has been fully complied with, and even better evidence than tlie statute demands lias been adduced.
    IV. Tlie statute provides that every judgmeut by confession duly made shall operate as a release of all errors in the record thereof. (Hart Dig., art. 771.) Now, it is clear that if the confession is duly made, no errors in the record of the judgment can be sustained by defendant. The appearance of the defendant in open court in proper person and acknowledging that lie owed plaintiff the amount set forth in tlie petition, (it is immaterial what means or words were used to convey to tlie court tlie fact of bis indebtedness,) his public avowal of his liability to pay to plaintiff the amount of said judgment, will estop him from resorting to mere technicalities for the purpose of avoiding the payment of a debt which he has acknowledged in a court of justice, thereby affording the highest grade of evidence known to the law, and that acknowledgment made contrary to his interest, by which additional force is given to liis admission.
    Now, if tlie judgment had been confessed by one unauthorized to do so, or had there been fraud in the procurement of said confession, these and other reasons-of like nature might afford defendant grounds for attacking said judgment.
    V. The object of the law in providing that tlie justness of a claim should be sworn to before a judgment by confession could be rendered was not intended' for tlie benefit of defendant, and lie cannot avail himself thereof. The liability of defendant is not founded on tlie affidavit of plaintiff, but rests wholly upon his admission, and lie is forever estopped from gainsaying what he lias thus admitted, and it can only be inquired into by third parties)
   Hemphill, Ch. J.

The act regulating proceedings in tlie District Courts-(art. 770, Dig.) declares that any person, for a bona fide debt, may without process appear in person or by attorney and confess judgment for such debt, but in such case a petition shall always be filed and the justness of the debt sworn to by the person in whose favor the judgment is confessed; and by art. 669 it is provided that all civil suits in tlie District Court shall be commenced1 by petition filed in the office of the clerk of the District Court.

Note 33. — Flanagan v. Bruner, 10 T., 257. If the defendant has been served with process or -acknowledges service the affidavit of the plaintiff is not required. (Flanagan v. Bruner, 10 T., 257; Gerald v. Burfchee, 29 T., 202.)

Prom these provisions it appears that a petition stating- the cause of action is a prerequisite essential to all other proceedings in a civil suit, and that it must precede all further action in a cause as well where judgment is sought by confession as otherwise. The judgment in this case is therefore fatally defective, as it was confessed aud rendered one day antecedent to the filing of the petition.

The second assignment is that the justness of the debt was not sworn to by the person in whose favor the judgment was confessed. This is positively required by the statute. No provision is made for affidavits by others, or proof ■ aliunde. Cases might be imagined in which the testimony of others would be more satisfactory than the oatli of an interested party; but the statute has .attached this as an incident to a judgment b3r confession, and the court has no authority to substitute the oath of any other for that of the person designated, and to consider such as a substantial compliance with the law. The proceeding- in this case was under a special provision of the statute which relieved the plaintiff from the necessity aud delay of issuing- process, and lie must comply witli all tin- formalities required by the law. Wo are of opinion that the see-■oud ground assigned for error is well sustained.

The mode of confessing judgment in this case is not free from objection. It ■would lie more in accordance with correct practice that the amount should be specified in the confession, even where this is indorsed on the petition. If confessions were allowable at all without the previous filing of a petition, then tlie confession in this case would he, wholly defective. No amount is specified, no statement of the amount is filed, and no data are given to serve as a basis ¡for tlie judgment.

Tile judgment is reversed and the cause remanded.

Judgment reversed.  