Ellett v. Britton
| Decision Date | 01 January 1851 |
| Citation | 6 Tex. 229 |
| Parties | ELLETT v. BRITTON. |
| Court | Texas Supreme Court |
It is error to render judgment by default where there is an answer filed which is brought to the notice of the court, although the answer may not have been filed on or before the fourth day of the term.
Words respecting the intended effect of payment are not inconsistent with the character of a promissory note.
The court cannot know, in the absence of an allegation and proof to that effect, that a place mentioned in the date of a promissory note is beyond the limits of this State.
Error from Bowie. This suit was brought upon the promissory note of the plaintiff in error and defendant below as follows:
“WASHINGTON, March 31, 1845.
On the 1st day of June next I promise to pay to Benjamin L. Britton or order one hundred and seventy-five dollars for value received, which when paid will be in full of a judgment obtained by W. W. Williams in the Hempstead County Court against A. K. Elliott, on the 8th October, 1841.”
(Signed) “WILLIAM ELLIOTT.”
The answer of the defendant was filed on the fifth day of the term, but before the calling of the cause. When the cause was called on that day the court disregarded the answer, because not filed on a previous day, and gave judgment by default in favor of the plaintiff for the principal sum specified in the note and interest. The defendant brought a writ of error.
The grounds of error relied on were--
1st. That the court gave judgment by default, notwithstanding the answer.
2d. That the plaintiff cannot maintain the action upon the note sued on as the promissory note of the defendant.
3d. That the note sued on was given in the State of Arkansas, and there being no averment in the petition of the interest allowed by law in that State no interest can be recovered upon the note.
J. W. Ellett, for plaintiff in error.
S. H. Morgan, for defendant in error.
The court erred in giving judgment by default when there was an answer in which was brought to the knowledge of the court. The case of Moore v. Janes, just decided, disposes of this case upon the first ground of error assigned.
The remaining objections to the judgment are not well taken. The note sued on is the promissory note of the defendant, upon which the action may well be maintained, and the stipulation embraced in it respecting the intended effect of its payment does not change the nature of the undertaking of the maker or affect the plaintiff's right of action.
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Hewitt v. De Leon
...a hearing on the issues presented therein as if filed within the time prescribed by said article. Moore v. Janes, 6 Tex. 227; Ellett v. Britton, 6 Tex. 229, 230; Hurlock v. Reinhardt, 41 Tex. 580, 582; City of Jefferson v. Jones, 74 Tex. 635, 636, 12 S. W. 749; Boles v. Linthicum, 48 Tex. 2......
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...22 Me. 203; Chesney v. St. John, 4 Ont. App. 150; Preston v. Whitney, 23 Mich. 260;Martin's Ex'x v. Lewis' Ex'r, 30 Grat. 672;Ellett v. Britton, 6 Tex. 229. The fact that the note is to become due in the event of the death of the maker thereof does not make it invalid. In the recent case of......
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Andrews v. Richardson
...the expiration of the time, and before the cause is called for trial, the answer is filed, the court holds it to be sufficient. Ellet v. Britton, 6 Tex. 229;Moore v. Jams, Id. 227. The order that the plaintiff shall amend before next term of court, or the cause to be dismissed with costs, d......
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Moore v. Janes
... ... W. Ellett, for plaintiff in error.[6 Tex. 228]LIPSCOMB, J.The plaintiff in error assigns two grounds of error on which he asks a reversal of the judgment of ... ...