Smith v. Carley

Per Curiam. The record shows that Carley, on the 15th of October, 1851, filed in the clerk’s office of the Johnson Circuit Court his cause of action in this case, in these words: “This is an action of assumpsit brought on a promissory note made payable to Elijah Bolander, and by him, on the 11th of January, 1851, assigned to the plaintiff1, which note is as follows: ‘ On or before the first day of September next, I promise to pay Elijah Bolander 90 dollars, value received, without the benefit of the valuation or appraisement laws. December 7, 1850. [signed] George Smith.’ ” Upon this statement, a writ was issued to the sheriff of Johnson county, and returned not found. Afterwards another writ was awarded by the Court and issued to the sheriff of Monroe county, and fiy him returned served. At the September term, 1853, the defendant was duly called, and, failing to appear, was defaulted. Ajs a general rule, a default, regularly taken, admits the cause of action; but, then, there must be a declaration or complaint containing such a statement of facts as will, when admitted, in point of law authorize a judgment against the defendant. Here, the cause of action is plainly defective. It does not allege the defendant to be the maker of the note. Nor does it aver that the note is unpaid. The proceedings were commenced under the old system of procedure, and there being no [452] sufficient declaration on which to base the judgment, it must be held erroneous. , I). M’Donald, W. A. McKenzie, and W. Henderson, for the appellant. The judgment is reversed with costs. Cause remanded, &e.