
    No. 5908.
    Josiah Watson v. Miller Brothers.
    1. Jtjdq-ment by Defatjlt. — No judgment by default can be entered In a case where the petition setting forth the cause of action has been substituted, with no notice given either to the defendant or to any one authorized to represent him, and this without regard to whether the defendant has been injured by the judgment or not.
    
      Appeal from Bell. Tried below before the Hon. W. A. Blackburn.
    The opinion sufficiently states the character of the case.
    
      J. Earl Preston, for appellant,
    contended that the appellant’s motion to set aside judgment by default should have been sustained and a hearing had upon the merits of his defense, as set out in said motion and the answer attached thereto, "and cited Houston & Texas Central Railway Company v. Burk, 55 Texas, 323.
    
      Harris & Saunders, for appellees.
   Maltbie, Judge.

If appellant was served with citation, and there was evidence tending to show that he was, he was clearly guilty of negligence in not appearing and making defense to the suit, and however meritorious his defense may be, the court was right in not setting aside the judgment to allow him to present it. The undisputed evidence, however, shows that the judgment was rendered on a substituted petition, and that it was substituted without notice to appellant or any one authorized to represent him. The statute requires that notice of the substitution of any pleading or other paper shall be given to the adverse party. Hot to do so is error; and it could make no defense whether the adverse party was injured or not. The court had no authority to render judgment without a petition; the substituted petition being unauthorized, the judgment by default was erroneous, and we are of opinion that it should be reversed and a new trial granted to appellant.

Reversed and remanded.

Opinion adopted November 11, 1887.  