Storey v. Nichols

• Decision Date: 01 January 1858
• Citation: 22 Tex. 87
• Parties: JOHN F. STOREY AND OTHERS v. F. P. NICHOLS.
• Court: Texas Supreme Court

22 Tex. 87

JOHN F. STOREY AND OTHERS

v.F. P. NICHOLS.

Supreme Court of Texas.

1858.

If it appear from the face of a note, and from the allegations of the petition, that the makers intended to bind themselves in a representative capacity, as trustees, and the plaintiff intended to recover against them as such, a judgment that would render them personally or individually liable therefor, is erroneous.

Where the defendant withdraws his answer, and judgment nihil dicit is rendered against him, such judgment must conform to the legal effect of the facts and admissions stated in the plaintiff's petition; and if it exceed that amount, it is such an error as may be assigned and reviewed in this court. 1 Tex. 78;4 Tex. 373;5 Tex. 262;10 Tex. 193;26 Tex. 348;28 Tex. 267;post, 645.

The proceeding to ascertain the amount, is the same on judgments by nihil dicit, as by default.

In other respects, a judgment by nihil dicit is held, by this court, to possess a stronger implication in favor of the plaintiff's claim, than an ordinary judgment by default; it is regarded as partaking of the nature of a judgment by confession, as well as by default. 29 Tex. 89, 121.

It has been held by this court, that a withdrawal of pleas, is a virtual waiver of errors; but this consequence is subject to such limitations and restrictions, as are incident to the nature and extent of such implied confession. The rule, in reference even to an express confession of judgment, is subject to limitations and qualifications.

The legal consequence of the withdrawal, by the defendant, of his pleas, is, that it is an implied confession of judgment, having reference to the cause of action stated in the petition; it is tantamount only to such an express confession of judgment, as does not state the amount and terms of the judgment, and is liable to be partially curtailed and qualified, by facts in the record, which raise a rebutting presumption. 28 Tex. 264.

See this case as to the legal effect of judgments by default, nihil dicit, and by confession; and the distinctions between them respectively.

ERROR from Caldwell. Tried below before the Hon. Alexander W. Terrell. Suit by the defendant in error, against the plaintiffs in error, on a promissory note, as follows:

+---------------------------------------+
                ¦$275.98.¦Lockhart, Texas, June 3, 1857.¦
                +---------------------------------------+
                

One day after date, we, the undersigned, trustees of the “Lockhart Union Female Seminary,” and our successors in office, promise to pay to F. P. Nichols (late principal of said seminary) or order, two hundred and seventy-five dollars 98-100, balance due him as principal of said seminary, bearing ten per cent. interest per annum, from the 4th day of February, A. D. 1857.

+------------------------------------------------------+
                ¦Signed,¦         ¦(¦JOHN F. STOREY, President,¦[SEAL.]¦
                +-------+---------+-+--------------------------+-------¦
                ¦       ¦         ¦(¦EDWARD HEPPENSTALL,       ¦[SEAL.]¦
                +-------+---------+-+--------------------------+-------¦
                ¦       ¦Trustees.¦(¦                          ¦       ¦
                +-------+---------+-+--------------------------+-------¦
                ¦       ¦         ¦(¦SAM'L J. P. MCDOWELL,     ¦[SEAL.]¦
                +-------+---------+-+----------------------------------¦
                ¦       ¦         ¦(¦Sec'y and Treas'r.                ¦
                +------------------------------------------------------+
                

Petition filed October 5, 1857, against John F. Storey Edward Heppenstall, and Champion Cowan, successor to Samuel J. P. McDowell, trustees of Lockhart Union Female Seminary. The petition, after averring the execution and delivery of the note, and that Nichols was the holder and owner thereof, represented that “said defendants, their successors, nor no other person for them, have paid to your petitioner, the said sum of money, or any part thereof, save the sum of one hundred 65-100 dollars, although often requested,” etc.

Petition prayed, that judgment be rendered against the defendants for the said sum of money, all interest that had or might accrue, and costs. Defendants filed their answer on 23d day of October, 1857. Answer, general denial. On the 24th day of October, 1857, withdrawal of answer by defendants and judgment, as stated in the opinion, for the sum of one hundred and ninety-five dollars and nineteen cents ($195.19).

Defendants assigned the following grounds as error: 1. The court erred in rendering judgment against said defendants, in their individual capacities and awarding execution thereon against their individual property, when they were sued as trustees of Lockhart Union Female Seminary, upon an instrument of writing given as such trustees. 2. The court erred in rendering judgment against the defendant, Cowan, in his individual capacity, and awarding execution against his property, when he was sued as trustee of said seminary, and as a successor to a former trustee thereof. 3. The court erred in rendering judgment against said defendants, in favor of plaintiff, for the sum of one hundred and ninety-five dollars and nineteen cents debt; it being for a larger sum than was due upon the instrument sued on in this case.

Chandler and Turner, for plaintiffs in error, argued that any indorsement, transfer, or other writing made upon the back of commercial paper, is presumed to have been so indorsed at its inception. This being the case, the judgment is excessive.

W. R. Cowan, for defendant in error, argued that the note bore interest from February 4, 1857, and there being no statement of facts in the record, the court would presume that there was proof to sustain the judgment. He cited 3 Tex. 357;2 Tex. 297, 581, 594. On the basis assumed, the error in calculation of interest being but thirty-two cents, he offered to remit the same, and asked an affirmance of judgment, with damages.

ROBERTS, J.

The judgment is excessive, because the petition admits a credit of $100.65, without ascribing to it any date, and interest is calculated on the whole of the note up to the date of the bringing of the suit--eight months and two-thirds. The suit is brought against defendants, as trustees of the ““Lockhart Union Female Seminary,” and the judgment is rendered against them in their individual capacity. The manner of executing the note, on which the suit was brought, shows that it was intended to be an obligation, as trustees; and the fact, that one of the defendants is sued as a successor to one of the obligors in the note, who is not included, shows that the plaintiff must have intended to recover against them as trustees.

The judgment rendered, then, departs from the legal effect of the facts stated in the petition; and from the claim made by it, both as to the amount, and as to the capacity of defendants. The important question is, have the defendants a right to assign this as error, they having pleaded to the action by a general denial, and withdrawn their pleas in the court below? The recital in the judgment is as follows: “In this cause, came the plaintiffs and defendants, by their attorneys, defendants withdrawing their answer, the court hearing the evidence; and it appearing to the court, that this suit is upon a just liquidated claim, it is therefore ordered, adjudged, and decreed, that the plaintiff, F. P. Nichols, do have and recover,” etc. This is a species of judgment by default, and is here commonly called a judgment by nihil dicit. It is not provided for by our statute. The...