Smith v. Wood

37 Tex. 616 | Tex. | 1873

Walker, J.

This was an action brought on a promissory-note, calling for three thousand five hundred and ten dollars in gold, given for the purchase-money of the lands described in the petition.

The appellants, Thomas W. and G. E. Smith, were defendants below. Gl. E. Smith was personally served with process, and plead to the action. Thomas W. Smith was served by publication, and it does not appear from the record that he filed any pleadings in the ease; but the judgment recites that both parties waived a jury, and submitted the cause, upon the law and evidence, to the court. The court adjudged the amount of the note to the plaintiff in gold, and decreed the foreclosure of the vendor’s lien.

The only material questions presented for our decision are: first, “ Was there such an appearance in the District Court, on “ the part of Thomas W. Smith, who was served by publi- “ cation, as saved the necessity of a statement of facts in the “ record ? ” And, secondly, “Was it competent for the court “ to render a judgment for gold on a note dated the 12th of “ January, 1870, and payable in gold ? ”

To the first inquiry, it would appear from the pleadings filed by G. E. Smith in the case, that the plaintiff was put to the proof of every material allegation in his petition. The production of the note on the trial became necessary. (Mims v. Mitchell, 18 Texas, 443; Able v. Chandler, 12 Texas, 88; Kinnard v. Herlock, 20 Texas, 48.) This record does disclose the facts necessary to support the judgment; but we think, under the rule laid down in Chester v. Walters, 30 Texas, it may 'be claimed that the record shows a personal appearance of both the defendants. This case is closely analogous to the one at bar. The recitals in the judgment are conclusive on the parties. (Goss v. Pilgrim, 28 Texas, 263.) A similar doctrine is held in DeWolf v. Snow, 25 Texas, 320; also in Laird v. Thomas, 22 Texas, 276. Indeed, authorities are too numerous to require citation.

Owing to our attempt to follow the decisions of the Supreme Court of the United States, there may he some contradiction in the rulings of this court touching the “ Legal Tender Acts; ” but we have conceded to the Supreme Court of the United States, in Van Alstyne v. Sorley, 32 Texas, 532, the authority, to interpret the legislation of Congress; and, since the ease of Trebilcock v. Wilson, 12 Wallace, 687, where Bronson v. Rhodes, 7 Wallace, 220, is affirmed, we have followed the ruling of that court, as in Hely v. Coswitz, and other unpublished cases.

There was no error in the court rendering a judgment for gold in this ease; nor do we find any error on which to reverse the judgment. It is therefore affirmed.

Affirmed.