Houston v. Dunn

• Citation: 13 Tex. 476
• Parties: SAMUEL HOUSTON v. MICHAEL C. DUNN.
• Decision Date: 01 January 1855
• Court: Supreme Court of Texas

13 Tex. 476

SAMUEL HOUSTON

v.MICHAEL C. DUNN.

Supreme Court of Texas.

1855.

Error from Walker. Action by defendant in error against plaintiff in error on a transcript of a judgment of a circuit court at Nashville, in Tennessee, rendered at May term, 1853. A transcript of the judgment was filed with the petition. It appeared from the transcript that the plaintiff brought his action in Tennessee, in September, 1852. The summons commanded the sheriff to “summons Samuel Houston if to be found in your county to be and appear,” &c. Summons returned “Came to hand and executed September 13th, 1852.” The plaintiff declared on a written obligation dated June 8th, 1839, for $716.89, and claimed $600 damages for detention. After the declaration or complaint came this entry: “And by consent of parties the following entry was made, plea payment and issue.” Then: “And afterwards to wit: at the May term, 1853, to wit: on the 9th day of May, 1853, the parties appear by their attorneys,” &c. Jury trial, and verdict, and judgment in favor of the plaintiff for his debt, damages and costs. The transcript was certified to be “a correct transcript of the record and proceedings,” &c., “as the same remain of record in said court.”

The defendant excepted to the petition, 1st. It does not appear from said transcript, that there was any issue joined between the parties.

2d. It does not appear from said transcript that the defendant appeared by himself or attorney, or filed any plea, demurrer or exceptions thereto.

3d. Said pretended transcript does not show that any legal service of citation or summons was had upon said defendant.

There were other objections going to the regularity of the proceedings in Tennessee, and the sufficiency of the transcript. And for further answer defendant denied all and singular, &c.

The exceptions of defendant were overruled; cause submitted to judge without a jury; judgment for plaintiff. No statement of facts.

Yoakum & Branch, for plaintiff in error. In this case the transcript of the judgment sued on is made part of the petition wherefore the plea nul tiel record is not pleaded, but the defects of the judgment are pointed out in the exceptions.

Transcript of a record of a judgment is not admissible in evidence, unless it have the pleadings. (Doe v. Smith, 4 Blackf., 228.) True, the clerk says “and by consent of parties the following entry was made, plea, payment and issue.” Is this the recital of the clerk or does he take it from the record? It is manifestly a recital of his own and not from the record, and can form no part of it. (Hill v. Fiernam, 4 Miss., 316; Fugate v. Glasscock, 7 Miss., 577; Polhemus v. Perkins, 3 Gran., 435.) But if the whole of the sentence be part of the record, and not the recital of the clerk, it is in law a mere nullity. As to the plea at common law, it should set forth the fact of payment ad diem, or post diem, in whole or in part, and conclude with a verification, and the plaintiff follow with his replication. Such short-handed pleadings are not law in Tennessee, Texas, or any court of record. We say, then, that the record falsifies itself, for it was not a judgment upon issue joined.

In Tennessee it has been decided that entries in an action such as ““plea, payment, set-off and replication” do not constitute pleas, and will be treated as nullities by the court. (Webber v. Houston, 6 Yerg., 314.) In this case where the memorandum said, “1st, plea payment, 2d, set-off,” the court said, if they were to be treated as no pleas to the action, then there was no issue to try, and the judgment should have been rendered nil dicit.“But a jury has passed and have found for the plaintiff.” Say the court “on what? not upon the issue, for there was none.” In concluding their opinion, the court say “the whole is such a chapter of ambiguity that, to get rid of it, we reverse the judgment and remand the cause for a repleader in the circuit court.” But the record before us says by way of recital, that the parties appeared by their attorneys. Who was the defendant's attorney? In a court of record the attorney must appear on the record and in the pleadings.

His mere presence in the court without some written defense would not hinder a judgment by default or nil dicit. We conclude, then, that either the whole...