William H. Niblett et al. v. George W. Shelton, 28 Tex. 548

Smith, J. —The defendant in error, Shelton, instituted this suit upon an obligation in writing, as follows, to wit: “$770. On or before the first day of January, 1860, we promise to pay R. A. White, or bearer, the sum of seven hundred and seventy dollars, bearing ten per cent, interest from date. This note is given to secure part of the purchase-money of two tracts of land, of 320 acres each, patented e to said White, as assignee of Elijah Sanders and Richard Sanders, sold us this 17th day of August, 1858. “W. H. Niblett, “ S. P.

Niblett.” Shelton avers that he is the holder and owner of the note and the vendor’s lien upon the lands referred to, which he fully describes by metes and bounds; that the note is due and unpaid, less the credits specified in the petition. Service was accepted by the defendants by attorney, and judgment by default was rendered, without the intervention of a jury, for the amount due upon the note.

The vendor’s lien was enforced, and order of sale ordered to be issued; and the defendants below bring the case to this court, and assign for error, that the court below entered up the judgment and order of sale without the intervention of a jury to find the facts that the note was given for the lands described in the petition and that the plaintiff was entitled to the vendor’s lien.

When the defendant is served with process, and fails to file his plea on or before the fourth day of the term of the court, after legal service, the plaintiff becomes entitled to his judgment by default; and, if the cause of action be liquidated and proved by an instrument in writing, the clerk shall, unless a jury-is asked for by either party, assess the damages of thé plaintiff; but if the cause of action be unliquidated, a jury shall be sworn to assess the damages of the plaintiff. (O. & W.

Dig., Art. 496.) In this case, the plaintiffs’ cause of action being liquidated, that is, the amount due by an instrument in writing, it was not necessary to call a jury for the purpose of assessing the amount due the plaintiff. The jury is necessary only when the damages of the plaintiff are unliquidated.

A judgment by default amounts to an admission of the truth of the facts charged; the facts set out in the petition are to be taken as proved and admitted, (4 Tex., 381; 21 Id., 508;) and there is nothing to prevent the court from making a decree "without reference to a jury. (3 Tex., 305; 10 Id., 213; 16 Id., 549; 17 Id., 438.) The note sued on recites the fact, that it was given for two tracts of land sold the defendants below by the payee of the note, White.

It does not particularly describe the tracts by metes and bounds, but the plaintiff, in his petition, suj>plies that defect by a fall description of both tracts by metes and bounds, and avers they are the two tracts for which the note was given; and according to the rulings of this court (cases cited above) these averments are taken as true and admitted; and, as there was no controverted fact or unliquidated damages for the jury to determine or assess, the judgment and order of sale were properly entered without the interposition of the jury. There being no error in the cause, the judgment is Aeeirmed.