Gilder v. McIntyre

• Decision Date: 31 January 1867
• Citation: Gilder v. McIntyre, 29 Tex. 89 (Tex. 1867)
• Parties: A. J. GILDER ET AL. v. HUGH C. MCINTYRE.
• Court: Texas Supreme Court

29 Tex. 89

A. J. GILDER ET AL.

v.HUGH C. MCINTYRE.

Supreme Court of Texas.

January, 1867.

To maintain an action upon a note it is necessary to aver some act on the part of the maker which in law will fix liability on him; such as that he made and executed the note, showing that it is his act and deed, and it must also be averred that the plaintiff is the owner, or has an interest in the note; and, if there be a defect in the petition in either respect, it will be defective. Pas. Dig. art. 1427, note 537.

But where the averment is positive that the plaintiff is the owner and holder of the note sued upon, and that the defendants, for a valuable consideration, made and executed it, and the note is set out in full in the petition, it is sufficient. The withdrawal of the defendant's answer amounts to a judgment nihil dicit, which is regarded as a species of judgment by confession, and carries with it more strongly the admission of the justice of the plaintiff's cause of action, and will operate as a waiver of more errors than a judgment by default. Pas. Dig. art. 1478, note 574; 4 Tex. 452;20 Tex. 132.

A judgment nihil dicit amounts to a confession of the cause of action stated, or attempted to be stated, in the petition, if the amount claimed can be ascertained by the proceedings had on a judgment by default; that is, a writ of inquiry on an unliquidated demand, or by the clerk upon a liquidated demand, proved by a written instrument filed as part of the petition, or sufficiently described to enable the clerk to make the computation of the amount due. Pas. Dig. art. 1508, note 594; 22 Tex. 93;post, 121.

ERROR from Washington. The case was tried before Hon. ROBERT E. B. BAYLOR, one of the district judges.

McIntyre sued for the use of Chappell, and stated that he “is the owner and holder of a certain promissory note, made and executed for a valuable consideration by A. J. Gilder and John G. Knapp, of said county, which said note is substantially as follows, to wit: [Here followed a copy of the promise by the makers, “to pay Hugh C. McIntyre, guardian of Sarah McIntyre.”] There was no allegation connecting Chappell with the note. No answers appear in the record, but it is recited that “the defendants withdrew their pleas heretofore pleaded by them, and say nothing in bar of the plaintiff's action.” There followed a judgment for the plaintiff.

The defendant, Gilder, prosecuted error, and assigned for error that the petition is insufficient in law.

No brief for plaintiff in error furnished to the reporter.

Sayles & Bassetts, for defendant in error. The error assigned is the insufficiency of the petition, in that there is no allegation to whom the note sued on was executed or delivered.

The allegation in the petition is, that the plaintiff is the owner and holder of a certain promissory note, made and executed for a valuable consideration by the defendants, a copy of which note is substantially set out.

Although this allegation may have been bad upon general demurrer, in not describing the cause of action with sufficient certainty, yet it would have been sufficient upon a general demurrer, and would have sustained a judgment by default. The extent of the decisions made has been, that the petition must show, by proper allegations,...