Wheeler v. Pope

• Decision Date: 31 December 1849
• Parties: WHEELER v. POPE.
• Court: Texas Supreme Court

5 Tex. 262

WHEELER

v.POPE.

Supreme Court of Texas.

December Term, 1849.

Whether interest can be allowed on a note payable at a place beyond the jurisdiction of this State, in the absence of an allegation and proof of the rate of interest at the place of payment, is not an open question. It is settled that no interest can be allowed. (Note 47.)

Judgments of nil dicit are entitled to a more liberal construction than judgments by default. Indeed, it is questionable whether a more stringent rule than is applicable to judgments by confession can with propriety be applied to such judgments. (Note 48.)

Where the defendant withdraws his answer and says nothing against the plaintiff's suit, if the plaintiff's claim be liquidated, the amount of the judgment may be ascertained by the court without a jury, as in case of judgment by default.

Suit was brought upon a note payable in another State, and the judgment was by nil dicit, including “interest at the usual rate;” there was no allegation in the petition of the rate of interest where the note was payable; the judgment was entered without the intervention of a jury; the plaintiff assented to stay of execution for six months: Held, That the defendant was presumed to have assented to the judgment as it was entered.

Error from San Augustine. In this case suit was brought by the defendant in error against the plaintiff in error on a note payable at the house of a commercial firm in the city of New Orleans, in the State of Louisiana. The defendant, after an answer of general denial of indebtedness and payment, subsequently, by his attorney, withdrew his defense, “and says nothing in bar or preclusion of the plaintiff's action.” Judgment was rendered in the following terms: “It is therefore considered and ordered by the court that the plaintiff, Daniel N. Pope, do have and recover of Otis M. Wheeler, the defendant, the sum of three hundred and thirty-five dollars and fifty-five cents debt, as principal, and sixty-nine dollars and seventy-five cents interest, at the legal rate, as damages; making in all the sum of four hundred and five dollars and thirty cents, together with all the costs in this behalf to be taxed. And it is further ordered that execution issue. And comes the plaintiff, by attorney, and agrees to stay execution six months for the principal and interest.”

Ardrey, for plaintiff in error, argued that it was error to enter up final judgment without a jury to ascertain the amount. It is only upon judgments made final by default that the judge or clerk can assess the damages. The statute is an innovation upon...