Hamilton v. Black, Administratrix, 1 Dallam 586

MORRIS, Justice. —Jacob Black, who died pending this action and whose administratrix is now in court, filed his petition in the District Court of Red River County, alleging indebtedness on the part of one Hamilton to him in the sum of $3500, on a promissory note or writing, obligatory bearing date the 1st day of January, 1835, and payable twelve months after date; filing his note and praying that it be made a part of the petition.

His petition was filed on the 24th of March, 1840, and at the September term, 1840, process having been served, the defendant, Hamilton, appeared and filed an answer in the nature of a demurrer, or with special exceptions, in which he prayed the judgment of the court. The cause was continued by defendant, and on the 4th day of April, 1842, came on for hearing on the petition and answer. The demurrer, or exceptions, were overruled by the judge and final judgment rendered for the debt and interest. From this judgment, an appeal is prayed to this court.

The points relied on by the counsel for the appellant as grounds of error in the proceedings and judgment in the court below are: 1. That the petition is insufficient, in not specifying the term at which it was filed. 2. That the instrument in writing declared on by the plaintiff below is styled a “promissory note, or writing obligatory,” when he should have declared upon the one or the other. 3. That the note or instrument in writing was not on file, as alleged; nor was a copy of it ever served upon the defendant, as a part of the plaintiff’s petition. 4.

That the judgment of the court on the defendant’s answer should have been respondeat ouster, and not final. The first ground of demurrer or exception was abandoned by coun- • sel in argument and need not therefore be considered by the court. It will be proper to examine the second and third grounds in connection.

The object of our statutes on the subject of pleading is to simplify as much as possible that branch of the proceedings in courts which, by the ingenuity and learning of both common and civil law lawyers' and judges, had become so refined in its subleties as to substitute in many instances the shadow for the substance. Our statute (vide Texas Laws 1836, page 201,

section 8) requires, at the hands of a petitioner to a court of justice, only a statement of the names of the parties plaintiff and defendant; a full and fair exposition of his cause of action, and finally the relief which he asks. Applying this statute to the case under consideration, we can not see that the plaintiff below has failed to comply with its requisitions either in spirit or in letter.

The date of the “note, or writing obligatory” as it is called in the petition, the time of payment and amount due, are specially set forth, and amply sufficient to notify the defendant of what he was called on to defend; and we entertain no doubt that under the allegations there made the note or writing could have been given and would have been admitted as evidence, even without its being made an exhibit in the case and a part and portion of the petition.

The exception made as to its not being on file as a part of the petition, nor served upon the defendant, is clearly matter in abatement, and should have been pleaded as such; and the statute (Texas Laws, volume 4,

section 9, page 89) specially provides, that all pleas in abatement shall be under oath or affidavit, which oath or affidavit to said plea nowhere appears on the record. The joinder in demurrer only admits these points which are properly pleadable in demurrer; and this, being matter in abatement and not of demurrer, can not therefore upon such joinder be deemed as admitted. The note, then, seems to have been made a part of the petition. A copy of it appears in the record; the clerk below certifies that he issued a true copy of the petition to the sheriff; the sheriff returns it duly executed on the defendant.

None of these facts are put in issue by plea properly substantiated, and the court is bound therefore to presume that the note was a part of the petition; and this being ascertained, there no longer exists the slightest ground for the difficulty suggested by the second exception. As to the fourth point: It is undoubtedly true that on mere dilatory pleas the usual judgment of the court in overruling them is respondeat ouster. But the point in consideration is, whether under our law and practice the court below had the power and right to give final judgment on the pleadings as they then stood?

At the first, or appearance term, after the service of the petition, the defendant filed his answer, thereby saving the necessity and superseding the right of the plaintiff to take his judgment nisi, by default, under the statute. At that term the cause was continued by defendant. We lose sight of the case for two years. In September, 1842, it was called for trial, and the judge properly decided that the answer was bad. Was the defendant not then in default?

And should the plaintiff be forced to his rule to plead against him, thereby insuring the farther delay of three days, and in all probability a term, before an answer to the merits could be compelled, or final judgment by default, on failure therein, be taken? We think not; but consider that he was, under the statute, in default (volume 4, page 88), and that the judge by the law had the right and power to give final judgment in the case. It does not appear from the record that the defendant ever asked leave of the court to plead over to the merits, or that that leave was refused, by the court.

He seems to have intrenched himself behind legal objections which the court below and the court here deem untenable, and he must abide the result. It is therefore considered by the court that there was no error in the judgment of the district court, and that the same be in all things affirmed. Affirmed.