22 Tex. 87 | Tex. | 1858
The judgment is excessive, because the petition admits a credit of flOO 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 “Lock-hart 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is, have the defendants a right to assign this as error, they having pleaded to the action by a general denial, and withdrawn their pleas in the court below?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
In all these cases, it is maintained that a judgment by nihil dicit is in the nature of a judgment by confession, and that the withdrawing the pleas, is a virtual waiver of errors. The rule that a confession of judgment waives all errors in the judgment, is itself subject to limitation and restriction, necessarily implied. (Hart. Dig. Art. 771.) In the case of Montgomery v. Barnett, 8 Tex. Rep. 148, it was decided, that a confession of judgment made without service of process, and before the filing of a petition, was contrary to law; and that the error therein was not waived, by the judgment upon confession being entered. So, in such case, whore the affidavit to the justness of the debt is wanting. (Hopkins v. Howard, 12 Tex. Rep. 7.) So too, if a cause of action is set out in the petition, on an open account, for two hundred dollars, and a judgment is expressly confessed on a note for three thousand dollars, it can hardly be doubted, but that this judgment would be held to be erroneous ; because for this last cause of action, there would have been no petition, no process, and no affidavit, as required by law. (Hart. Dig. Art. 770.) The restriction then is, that the cause of action, embraced in the express confession, must not be an entirely different one from that stated in the petition. If such a radical departure from the cause of action alleged, be erroneous in the case of an express confession of judgment, it can hardly be otherwise, in the case of a judgment by nihil dicit, which is, at most, only an implied confession of judgment.
Again, such implied confession is liable to be limited and qualified, not only by an opposing presumption, but also in the extent of its operation on the facts. A confession of judgment should properly express all the necessary facts, amounts, and terms, upon which the judgment is based. (Tidd’s Pr. 559; Montgomery v. Barnett, 8 Tex. Rep. 147.)
The mere act of withdrawing pleas, cannot, by implication, ascertain the amount and terms of the judgment, otherwise than in connection with, and in reference to the plaintiff’s claim in the petition. It acknowledges that plaintiff has a right of action arising upon the matter contained in the petition, whether it be perfectly or imperfectly stated, (where no rebutting presumption obtains, as in case of Frazier v. Todd); but the petition
The judgment, actually rendered in this case, is an entire departure from the cause of action in the petition, in respect to the persons against whom it is rendered; and is for an amount not warranted by a reference to the plaintiff’s claim, made in the petition; and hence the error therein is not cured by withdrawing the plea, and is properly assigned.
Judgment is reversed, and the proper judgment will be here rendered.
Reversed and reformed.