Richardson v. Ellett
| Decision Date | 01 January 1853 |
| Citation | 10 Tex. 190 |
| Parties | RICHARDSON v. ELLETT. |
| Court | Texas Supreme Court |
Where judgment by default has been taken, and the plaintiff discovers a defect in the proceedings, which renders the judgment null or erroneous, he may file a petition in the nature of a bill of review, and obtain a correction of the error or nullity. (Note 33.)
Where a note bears interest from date, and the date is omitted, the date of its delivery may be proved, and it will bear interest from that time.
Where the cause of action is liquidated, the filing of an answer which tenders an issue of law merely, does not render it necessary to take a verdict.
Error from Bowie. This suit was originally brought on a writing obligatory, averred to have been executed on the 8th January, 1850, and bearing interest at either per cent. from date. Service of citation and copy of petition was made on the defendant; and on his failure to appear, judgment was taken by default. The plaintiff having subsequently discovered that the citation had not been sealed, filed his petition (to another term) to have the judgment set aside, and thatdue proceedings being had, judgment might again be entered for his debt, interest and costs.
The defendant appeared and excepted to the sufficiency of the second petition, but did not further answer. The exception was overruled and judgment entered against defendant, as upon nil dicit.
As causes for the reversal of this judgment the defendant assigned:
1. The overruling of the exception.
2. The whole proceeding upon the bill of review.
3. That the judgment was excessive.
4. The rendition of judgment without the intervention of the jury.
Pirkey, for plaintiff in error.
J. W. Ellett, for defendant in error.
It will be necessary to consider the grounds assigned for error separately. Neither singly nor in the aggregate do they present such objection as to authorize the reversal of the judgment. On discovery of the want of a seal the plaintiff was not bound to issue execution at the risk of having the judgment reversed on error, and being subjected to the payment of the costs of the appellate proceeding. (2 Tex. R., 422.) He had the right, on application, to have the illegal proceedings set aside, and to have a judgment not tainted with causes of nullity.
Nor is the judgment excessive, as charged by the plaintiff in error. It is true that the note, as copied in the petition, does not bear any date; but the petition avers it to have been executed...
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Seguin v. Maverick
...wife? 1. A judgment by default may be reviewed, if there be anything in the record showing the same to be null and erroneous. Richardson v. Ellett, 10 Tex. 190. 2. This gives rise to the question, does the record present any such errors as would have reversed the case upon a writ of error? ......
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Heirs of Yturri v. McLeod
...has been repeatedly recognized by this court since the doubt expressed in Randon v. Cartright. McFarland v. Hall, 17 Tex. 676;Richardson v. Ellet, 10 Tex. 190. It is well known to be a remedy of restricted application; but among those cases where it may be brought, errors on the face of the......
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