Gilder v. McIntyre , 29 Tex. 89 ( 1867 )

Smith, J.

The defendant in error instituted this suit upon a note alleged to have been “made and executed by A. J. Gilder and John G. Knapp,” and of which he is the “ owner and holder.”

The judgment recites the fact that the defendants below withdrew their pleas and made no further defense to the plaintiff’s cause of action. Judgment was rendered in favor of the plaintiff for $351 40,- and the defendant, Gilder, brings the cause here by writ of error, and contends that there was error in the proceedings below, in that the petition does not designate the person to whom the note was “made and executed.”

To maintain an action upon a note, it is necessary to aver some act on the part of the maker which, in law, will fix liability on him; such as that he made and executed the note, showing that it is his act and deed; and it must also be averred that the plaintiff is the owner or has an interest in the note; and if there be a defect in the petition in either respect it will be defective.” (22 Tex., 609.)

We are of opinion, however, that neither of these defects can be imputed to the petition in this case, and from the rulings of this court (4 Tex., 452; 20 Tex., 132) the petition is sufficient in law. The averment is positive that the plaintiff is the owner and holder of the note sued upon, and that the defendants, for a valuable consideration, made and executed it, and the note is set out in full in the petition.

But if this were regarded as a defective statement of the cause of action, the withdrawal of the defendant’s answer amounts to a judgment nihil ditit, which is regarded as a species of judgment by confession, and carries with it more strongly the admission of the justice of the plaintiff’s cause of action (and will operate as a waiver of more errors) than a judgment by default. A judgment nihil ditit amounts to a confession of the “ cause of action stated, or attempted to be stated, in the petition,” if the amount claimed can be ascertained by the proceedings had on a judgment by default, that is, a writ of inquiry on an unliquidated demand, or by the clerk upon a liquidated demand, evidenced by a written' instrument filed as part of the petition, or sufficiently described to enable the clerk to make the computation of the amount due. (22 Tex., 93.)

There being no error apparent, the judgment is

Affirmed with damages.