Smith v. Wood

• Decision Date: 01 January 1872
• Parties: T. W. AND G. E. SMITH v. A. H. WOOD.
• Court: Texas Supreme Court

37 Tex. 616

T. W. AND G. E. SMITH

v.A. H. WOOD.

Supreme Court of Texas.

1872.

1. In an action against two defendants jointly, on a promissory note, personal service was had on one of them, and the other was served by publication. The record did not show that the defendant who had been served by publication had filed any pleadings in the case, but the judgment of the court below recited the fact that “both parties waived a jury, and submitted the cause to the court upon the law and facts.” Held, under the authority of Chester v. Walters, 30 Texas, 53, that the record disclosed a personal appearance of both of the defendants, and the recitals of the judgment were conclusive upon the parties.

2. In an action on a promissory note calling for gold, it was not error for the court below to render a judgment for gold.

ERROR from Washington. Tried below before the Hon. J. M. Onins.

The opinion of the court sufficiently indicates the facts of the case.

Breedlove & Ewing, for the plaintiff in error.

I. The judgment recites, that “this day came the parties by their attorneys,” and that, “by consent of both parties, a jury was waived, and the cause submitted to the court,” etc. This is clearly erroneous as to Thomas W. Smith, who was cited by publication, and never filed any answer, or made appearance, in the case, “by attorney,” or otherwise. Under the system of practice in our District Courts, all the pleadings in a cause are required to be in writing, and we know of no way in which a defendant can appear, except by a written answer. In order to authorize the recitals in the judgment, and the judgment rendered, as to Thomas W. Smith, he must have appeared by filing a written plea. Even an acceptance of service and waiver of process must be in writing. (P. D., Article 1432.) Where there was neither an answer filed, nor an acceptance of service, the judgment is erroneous. (Ward v. Latimer, 2 Texas, 247.) As Thomas W. Smith did not answer at all, the only proper judgment that could be rendered as to him, was a judgment by default. Were any other permitted, it would be equivalent to deciding that a defendant can appear and answer, otherwise than in the mode prescribed by law. We should here remark, that the case of Chester v. Walters, 30 Texas, 53, was one in which there was no appearance in that Supreme Court, on behalf of the plaintiff in error, and that case was determined by this court upon an ex-parte hearing. The rule laid down in that case makes the recitals of the judgment override all the balance of a record: and if adhered to, would tend to work great injustice and injury to defendants absent from the State and who may be cited by publication. Under our present rules of practice, the attorney of the successful party prepares the judgment for the clerk, and by merely inserting a recital like the one in this case, the plaintiff could in every case defeat the defendant's right of having the judgment reviewed in the District or Supreme Court; and at the same time, relieve himself of the necessity of incorporating a statement of facts in the record. A second objection to the judgment is, that it proceeds to foreclose a lien on a tract of land, without the proper allegations in the plaintiff's petition, to authorize such foreclosure.

II. The court failed to “make out, and incorporate with the records of the cause, a statement of the facts proved therein, on which the judgment was founded,” as required by law. (P. D., Article 1488.)

“Where service has been made by publication, and the defendant fails to appear, whatever may be the cause of action, whether liquidated or unliquidated, proved by parol, written, or record evidence, the statute requires a statement of the facts to be incorporated in the record; and the omission to comply with that requisition will be fatal on error.” (McFadden v. Lockhart, 7 Texas, 573;Chrisman v. Miller, 15 Texas, 159.) In ex-parte proceedings of this character, where the defendant has not had actual notice of the suit, the plaintiff must be held to a strict compliance with every essential requirement of the law. (Allen v. Wyser, 29 Texas, 153.) And a failure to make a statement of the facts upon which the judgment is based, is error, for which the judgment must be reversed. (Pierpont v. Pierpont, 19 Texas, 227;Davis v. Davis, 24 Texas, 190.)

III. The judgment was rendered for gold coin of the United States; whereas, it “should have been rendered for dollars and parts of dollars, so as to have been payable in any legal tender of the United States.” This judgment is in direct conflict with decisions of this court. In the cases of Shaw v. Trunsler, 30 Texas, 391, and Windish v. Gussett, 30 Texas, 744, and Flournoy v. Healey, 31 Texas, 591, this court decided that “the Legal Tender Act is constitutional, and that any judgment tending to impair, impeach, or set aside the validity of this act, would be pro tanto erroneous.” And in all of those cases, this court decided that the rendering of judgment for specie, or coin, was error. In the later cases of Van Alstyne v. Sorley, 32 Texas, 519, the Central Railway v. George,...