Kinnard v. H.
| Decision Date | 01 January 1857 |
| Citation | 20 Tex. 48 |
| Parties | WILLIAM KINNARD v. H. V. HERLOCK. |
| Court | Texas Supreme Court |
It has been more than once decided, that though the general denial did not put plaintiff upon proof of the execution of his note, it required its production; and that if pleaded, it precluded the plaintiff from taking judgment by default, for want of an answer. 9 Tex. 610;12 Tex. 88; 25 Tex. S. 245.
Error from Dallas. Tried below before the Hon. Nat. M. Burford.
Crockett & Guess, for plaintiff in error, cited Able v. Chandler, 12 Tex. 88;Matossy v. Frosh, 9 Id. 610, 613.
Suit on promissory note. Plea, among others, of general denial. On exception, this was stricken out, and the defendant saying nothing further in bar of plaintiff's demand, it was ordered that the plaintiff have judgment. This proceeding is properly assigned as error. It has been more than once decided, that though the general denial did not put plaintiff upon proof of the execution of his note, it required its production; and that if pleaded, it precluded the plaintiff from taking judgment by default for want of an answer. Able v. Chandler, 12 Tex. 88;Matossy v. Frosh, 9 Id. 610, 613. The judgment was also excessive, there being no allowance for the payment of twenty dollars indorsed on the note. Judgment reversed and cause remanded.
Reversed and remanded.
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Texas Faith Partners v. Lindke, No. 10-06-00028-CV (Tex. App. 1/17/2007), 10-06-00028-CV.
...rendered after the defendant has filed an answer." Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989) (per curiam) (citing Kinnard v. Herlock, 20 Tex. 48 (1857)); accord In re K.B.A., 145 S.W.3d 685, 692 (Tex. App.-Fort Worth 2004, no pet.); see Toliver v. Dallas Fort Worth Hosp. Council, ......
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... ... Unless the plaintiff can demonstrate that he is the present owner and holder of a negotiable note, he had no claim. A general denial imposes on the plaintiff the duty of producing and offering in evidence the note sued on. Robinson v. Brinson, 20 Tex. 438, 440; Kinnard v. Herlock, 20 Tex. 48; Bond v. Mallow, 17 Tex. 636, 637. In face of the general denial the question of whether the appellee was the owner and holder of the note was a question of a material fact. As pointed out before, this fact could have been established and the appellee's burden discharged by ... ...