
    Richardson v. Ellett.
    Where judgment by default has been taken, and the plaintiff discovers a defect in the pro* ceedings, which renders the judgment null or erroneous, he may file a petition in the nature of a bill of review, and obtain a correction of the error or nullity. (Note
    Where a note bears interest from date, and the date is omitted, the date of its delivery may be and it will bear interest from that time.
    Where the cause of action is liquidated, the filing of an answer which tenders an issuo of law merely, does nob render it necessary to take a verdict.
    Error from Bowie. This suit was originally brought on a writing obligatory, averred to have been executed on the 8th January, 1850, and bearing interest at eight per cent, from elate. Service of citation and copy of petition was made on tlie defendant; and on his failure to appear, judgment was taken by default. The plaintiff having subsequently discovered that" the citation had not been sealed, filed his petition (to another term) to have the judgment set aside, and that due proceedings being had, judgment might again be entered for his debt, interest and costs.
    The defendant appeared and excepted to the sufficiency of the second petition, but did not further answer. The exception was overruled and judgment entered against defendant, as upon nil elicit.
    
    As causes for the reversal of this judgment the defendant assigned :
    
      J. The overruling of the exception.
    2. The whole proceeding upon the bill of review.
    3. That the judgment was excessive.
    4. The rendition of judgment without the intervention of the jury.
    Pirlcey,. for plaintiff in error.
    
      J. W. Ellett, for defendant in error.
   Hemphill, Ch. J.

It will be necessary to consider the grounds assigned for error separately. Neither singly nor in tlxe aggregate do they present such objection as to authorize the reversal of the judgment. On discovery of the want of a seal the plaintiff was not bound to issue execution at the risk of having the judgment reversed on error, aud being subjected to the payment of the costs of the appellate proceeding. (2 Tex. R., 422.) He had the right, on application, to have the illegal proceedings set aside, and to have a judgment not tainted with causes of nullity.

Nor is the judgment excessive, as charged by the plaintiff in error. It is true that tire note, as copied in the petition, does not bear any date ; but the petition avers it to have been executed on the Sth day of Januauy, 1830, a fact not controverted by the defendant. By its terms the instrument bears interest from its date, and it appears to have been accurately estimated.

Nor is there any force in the objection that the judgment was rendered without the intervention of a jury. The defendant took Issue only upon the law, and not the facts of the case. He did not plead to the facts; and, on the overruling of the demurrer, lie was without defense to the action, lie said nothing in bar or preclusion; and, as the demand was liquidated, there was no necessity for the intervention of a jury. Under such circumstances the defendant waived his right as effectually as if ho had authorized judgment by confession. (5 Tex. R., 2G2.)

Judgment affirmed.

Note S3. — Thompson ti. Bishop, 2-1T., 302; Thompson v. Bishop, 29 T., 154.  