Cartwright v. Roff

• Decision Date: 31 December 1846
• Citation: 1 Tex. 78
• Parties: JESSE H. CARTWRIGHT v. AARON A. ROFF
• Court: Texas Supreme Court

1 Tex. 78

JESSE H. CARTWRIGHT

v.AARON A. ROFF

Supreme Court of Texas.

December Term, 1846.

Writ of Error from Fort Bend County.

A withdrawal of the answer by the defendant, and judgment by nil dicit is equivalent to confession of judgment. It is a waiver of all objections to the petition and a virtual admission of the cause of action. [4 Tex. 373;5 Id. 262;6 Id. 260;10 Id. 193;22 Id. 87;28 Id. 264;29 Id. 89, 121.]

Where the plaintiff sues for a certain liquidated demand, and there are no damages to be assessed, judgment final by default or nil dicit may be entered without the intervention of a jury.

The plaintiff in error, Cartwright, being the payee and first indorser of a certain promissory note, was sued at the spring term, 1845, by the defendant in error, to whom the said note had been assigned. There was a judgment by default, but before it was made final the general issue was pleaded. On the trial this plea was withdrawn and judgment entered by nil dicit.

Buckley, for appellant assigned as error:

1st. The plaintiff by his petition showed no cause of action against appellant.

2d. The court should not have rendered judgment without a jury.

On the first point it is contrary to law to bring a suit against an indorser without first or simultaneously commencing suit against the maker of the note. There are two exceptions to this rule, but the case at bar does not come within the provisions of either. 1 Laws Texas, sec. 6, 201. Without bringing the case within the rule of the statute just referred to, the plaintiff has no cause of action against appellant. There is no averment in the petition that the makers of the note have been sued or that they are beyond the limits of the republic or are notoriously insolvent; in the absence of all of which he cannot recover of appellant.

On error the defendant, who did not appear below, may object to the sufficiency of the declaration (13 Wend. 85), and to illegal evidence. 14 Wend. 159. Error lies to a judgment by default and a defect in the declaration may be taken advantage of. 5 Johns. These authorities are in point and should reverse the judgment of the court below. The withdrawal of the answer, it will be contended by appellee, authorized the court to proceed as on default without a jury. If so, then the judgment is erroneous as aforesaid.

On the second point made, it is contended that as both the parties, after the issue joined, appeared and did not waive the right of trial by jury, the judgment should be reversed, because the plea and appearance precluded the plaintiff from proceeding and the court from giving judgment without a jury. The answer was filed on the day judgment was rendered which, ipso facto, set aside the primary default. 4 Laws Texas, secs. 5, 89.

There is no evidence in the record that the judgment by default was revived after the answer was withdrawn; and a final default could not be entered until three days after a primary default. If a proper judgment could be rendered at the time this was awarded, it must have been entered upon the verdict of a jury, unless a jury was waived. There was no waiver, therefore the judgment is invalid and should be reversed.

James W. Henderson, for appellee.

The grounds of error assumed by appellant are wholly fallacious. He relies on the statute organizing the district court, vol. 1, sec. 6, p. 201. This statute is repealed by the law of 1840, vol. 4, p. 144. The first section of the latter statute refers to claims upon which it was necessary to give notice of dishonor in order to hold the maker or security liable. The proviso in the same section goes on to show what should be deemed due diligence on all claims upon which a protest or notice was hitherto necessary. The diligence spoken of in this section, I conceive, refers to claims existing before the passage of this statute and not then sued upon. It can refer to no other class of claims. The statute provides for two classes of claims, negotiable and other written instruments. The 1st and 2d sections refer to negotiable instruments, and the other sections of the act to the class of claims mentioned in the 3d section.

The case at bar arose after the passage of this law, and is upon a negotiable note and must therefore be governed by the 2d section, subject only to the restriction therein contained.

The exceptions contained in the 6th section of this law do not refer to claims of a negotiable character, but to those written instruments mentioned in the 3d section. If any reference was had to the former it would have been so expressed, as the whole act evidently keeps up a clear distinction between the two classes of claims.

LIPSCOMB, J.

The errors assigned in this cause are:

1st. The plaintiff, by his petition, shows no cause of action against the defendant.

2d. The court should not have rendered a judgment without a jury.

On the first point, it is true the petition does not state what diligence had been used by the plaintiff; it...