Lewis v. Dennis

Watts, Commissioner. The amended petition did not set üp.a new cause of action, nor did it contain such new or additional matter as would require service thereof to be made upon appellants. The original petition contained a general description of the land, by giving the names of the original grantees, the number of leagues, the name of the islands upon which the same is located, the counties in which the same is situated, and the interest therein sought to be subjected to the lien. The amended petition contains only a more particular description of the land. Ward v. Lathrop, 11 Tex., 287; Spencer v. McCarty, 46 Tex., 213. The statute provides that where process has been served according to law, and the defendant fails to answer on or before the fourth day of the term, the plaintiff may at any time thereafter have a final judgment by default against the defendant; and if the cause of action is liquidated and proved by an instrument in writing, the clerk shall, unless a jury is asked for by one or the other of the parties, assess the damages of the plaintiff. Pasch. Dig., art. 1508. In this case the cause of action was liquidated and proved by an instrument in writing, to wit, a negotiable promissory note, and as neither party asked for a jury, the statute imperatively required the damages to be assessed by the clerk. The supreme court, in the case of Niblett v. Shelton, 28 Tex., 548, which was a suit to recover the amount due upon a note and to foreclose the vendor’s lien upon the land for which it was given, held that the default was an admission by the defendants of the averments contained in the petition; and the averments so admitted being sufficient to entitle the plaintiff to a judgment for the amount of the note and a foreclosure of the vendor’s lien, it was not error to render the judgment and direct an order of sale to issue without other evidence than the note [491] sued on. The note in that case, like the one in the present, retained upon its face a lien upon the land. It is contended by appellants that there should have been a partition of the whole lands decreed, and after the ninth interest was segregated, that the hen should have been foreclosed thereon and the same ordered to be sold in lots of not less than ten and not more than forty acres. Such a partition was not essential to a valid decree of foreclosure upon, and a sale of that interest. The provision of the constitution of • 1869, relied upon by appellants, had no application to a case like the present. It is obvious that to enforce it in such case would be impracticable. And without further considering the scope and meaning of that provision, it is a cause of congratulation to know that it is no longer a part of the organic law. The judgment is erroneous in directing execution to be issued against Lewis and Bussell jointly, oras a principal. The petition shows that Lewis was principal and Bussell indorser, and the judgment should have followed the prayer contained in the petition, by directing the execution to be first levied upon the property of Lewis, and in the event that was exhausted, then upon the property of Bussell. The judgment is also irregular in adjudging the order of sale to be directed to the sheriff of Aransas county as such. The land decreed to be sold is situated in Aransas and Calhoun counties; it would have been the better practice to have appointed the sheriff, or some other person, a commissioner, to make the'sale of the entire one-ninth interest in the land. For these errors and irregularities in the judgment, we are of the opinion the same ought to be reversed and reformed as indicated in this opinion, and the costs of this appeal should.be adjudged against appellee. Beversed and reformed. [Opinion delivered March 14, 1881.]