Gilder v. McIntyre

Citations

• 29 Tex. 89

Syllabus

<p>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. (Paschal’s Dig., Art. 1427, Note 537.)</p> <p>But where 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, it is sufficient. The withdrawal of the defendant’s answer amounts to a judgment nihil dicit, 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. (Paschal’s Dig., Art. 1478, Note 574.)</p> <p>A judgment nihil dicit 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, proved 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. (Paschal’s Dig., Art. 1508, Note 594.)</p>