Mechanism 18

Partial default that preserves the case

Can I take a default judgment against one defendant and keep the case alive against the others?

Yes, but the judgment has to say so. An interlocutory default may be taken against a defendant who has not answered while the case proceeds against the rest — and the order must state expressly that it does not dispose of all claims and all parties. Without that recital a court may treat it as final, start the appellate clock, and take the remainder of the case with it.

By John P. Henry · Tex. R. Civ. P. 239, 240 · Reviewed 2026-08-02

The authority

Where there are several defendants, some of whom have made default … the plaintiff may discontinue as to the defendants so making default and take judgment against those who have answered, or may take judgment against those who have made default. — Tex. R. Civ. P. 240, in substanceTex. R. Civ. P. 239, 240

Tex. R. Civ. P. 239, 240

When it applies

Multi-defendant collection suits — a tenant entity, several guarantors, prior assignors still liable on the lease, and one defendant who has moved out of state and will not appear.

How it is proved up

Perfect service and prove it. A default is only as good as the return, and an out-of-state defendant means long-arm service under the Civil Practice and Remedies Code with the requisite jurisdictional allegations pleaded.
Prove damages by affidavit even on a liquidated claim, with the instrument attached.
Include the express non-disposition recital: this judgment does not dispose of all claims and all parties and is interlocutory.
Segregate the defaulting defendant's liability from the others so the judgment can stand alone.
Check the servicemembers affidavit and the last-known-address certificate before presenting it.

What defeats it

Defective service, which is the single most common reason defaults are set aside.
A timely motion for new trial under the Craddock standard.
Omitting the non-disposition language, which can convert the order into a final judgment by operation of the finality presumption.

Where I have used it

Restaurant tenant, six co-defendants and two third-party defendants, County Court at Law No. 4. Default taken against the one defendant who had moved out of state — $61,207.41 plus $3,375 in fees, signed and file-stamped — while the answering parties settled for $20,000, receipted. Demands had gone not only to the tenant and guarantors but to prior assignors still liable on the lease.

The order

Document
to be added

Partial Default Judgment, signed and file-stamped · January 2012

The signed judgment in this matter is being retrieved from the file and will be published here in full, as the others are.

Questions

Is a partial default judgment final in Texas?

Not if it says it is not. A judgment is final for appeal if it disposes of all claims and all parties or states with unmistakable clarity that it is final. An interlocutory default should expressly recite that it does not dispose of all claims and parties.

What is the Craddock standard for setting aside a default?

A default will be set aside where the failure to answer was not intentional or the result of conscious indifference but was due to accident or mistake, the motion sets up a meritorious defense, and granting it will occasion no delay or injury to the plaintiff.

Do damages have to be proved on a default judgment in Texas?

Unliquidated damages must be proved. Even on a liquidated claim, presenting an affidavit with the underlying instrument is the practice that survives a motion for new trial.