At the time of the September 18 judgment, the basis for the default judgment no longer existed because Ferguson indeed had an answer on file; thus, it was error for the court to render a default judgment against him. Id.; accord Wilmer-Hutchins Indep. Sch. Dist. v. Blackwell, 529 S.W.2d at 577; and Sawyer v. Donley County Hospital District, 513 S.W.2d at 109. This matter is distinguished from those cases holding that the entry of a default judgment deprives the defendant from filing an answer, Buttrill v. Occidental Life Ins. Co., 45 S.W.2d at 640, and interposing a defense on the merits. Miller v. Trice, 219 S.W. at 230.
There is a general rule of law in this state to the effect that a presumption exists that officers have done, and will do, their duty. Buttrill v. Occidental Life Ins. Co., Tex. Civ. App. 31 S.W.2d 833; Tex.Jur. vol. 34, p. 462, ยง 81. In the case of Western Union Tel. Co. v. White, Tex. Civ. App. 143 S.W. 958, it was held that, where counsel for plaintiff in error instructed the clerk to withhold citation in error until notified by him to issue, and the notice was not issued and served within the time allowed by law to perfect a writ, was not such acts as would deprive the plaintiff in error to be heard on appeal, under the circumstances surrounding that case.
Article 2263 provides: "If it appears from the allegations in the papers of the cause that the party is a non-resident of the State, or if it appears from the return of the sheriff or constable that the party cannot be found in the county of his residence, the citation shall direct the officer to summon the defendant by making service on his attorney of record, if there be one." In Buttrill et al. v. Occidental Life Ins. Co. (Tex.Civ.App.) 31 S.W.2d 833, it appears that the citation in error failed to state the names of all defendants. Judge Looney said: "Plaintiff in error was not required to do other than allege `the names and residences of the parties adversely interested' * * * and this requirement was complied with.