
    Jesse H. Cartwright v. Aaron A. Roff
    Writ of Error from Fort Bend County.
    A withdrawal of the answer by the defendant, and judgment by nil dieit is equivalent to confession of judgment. It is a waiver of all objections to the petition, and a virtual admission of the cause of action. [4 Tex. 373; 5 id.262; 6 id. 260; 10 id. 193; 22 id. 87; 28 id. 264; 29 id. 89, 121.]
    Where the plaintiff sues for a certain liquidated demand, and there are no damages to be assessed, judgment final by default or nil dieit may be entered without the intervention of a jury.
    Tbe plaintiff in error, Cartwright, being the payee and first in-dorser of a certain promissory note, was sued at the spring term, 1845, by the defendant in error, to whom the said note had been assigned. There was a judgment by default, but before it was made final the general issue was pleaded. On the trial this plea was withdrawn and judgment entered by nil dicit.
    
    
      Bucldey, for appellant assigned as error:
    1st. The plaintiff by his petition showed no cause of action against appellant.
    2d. The court should not have rendered judgment without a jury.
    On the first point it is contrary to law to bring a suit against an in-dorser without first or simultaneously commencing suit against the maker of the note. There are two exceptions to this rule, but the case at bar does not come within the provisions of either. 1 Laws Texas, sec. 6, 201. Without bringing the case within the rule of the statute just referred to, the plaintiff has no cause of action against appellant. There is no averment in the petition that the makers of the note have been sued or that they are beyond the limits of the republic or are notoriously insolvent; in the absence of all of which he cannot recover of appellant.
    On error the defendant, who did not appear below, may object to the sufficiency of the declaration (13 Wend. 85), and to illegal evidence. 14 Wend. 159. Error lies to a judgment by default and a defect in the declaration may be taken advantage of. 5 Johns. These authorities are in point and should reverse the judgment of the court below. The withdrawal of the answer, it will be contended by aj> pellee, authorized the court to proceed as on default without a jury. If so, then the judgment is erroneous as aforesaid.
    On the second point made, it is contended that as both the parties, after the issue joined, appeared and did not waive the right of trial by jury, the judgment should be reversed, because the plea and appearance precluded the plaintiff from proceeding and the court from giving judgment without a jury. The answer was filed on the day judgment was rendered which, ipso facto, set aside the primary default. 4 Laws Texas, secs. 5, 89.
    There is no evidence in the record that the judgment by default was revived after the answer was withdrawn; and a final default could not be entered until three days after a primary default. If a proper judgment could be rendered at the time this was awarded, it must , have been entered upon the verdict of a jury, unless a jury was waived. There was no waiver, therefore the judgment is invalid and should be reversed.
    
      James W. Henderson, for appellee.
    The grounds of error assumed by appellant are wholly fallacious. He relies on the statute organizing the district court, vol. 1, sec. 6, p. 201. This statute is repealed by the law of 1840, vol. 4, p. 144. The first section of the latter statute refers to claims upon which it was necessary to give notice of dishonor in order to hold the maker or security liable. The proviso in the same section goes on to show what should be deemed due diligence on all claims upon which a protest or notice was hitherto necessary. The diligence spoken of in this section, I conceive, refers to claims existing before the passage of this statute and not then sued upon. It can refer to no other class of claims. The statute provides for two classes of claims, negotiable and other written instruments. The 1st and 2d sections refer to negotiable instruments, and the other sections of the act to the class of claims mentioned in the 3d section.
    The case at bar arose after the passage of this law, and is upon a negotiable note and must therefore be governed by the 2d section, subject only to the restriction therein contained.
    The exceptions contained in the 6th section of this law do not refer tó claims of a negotiable character, but to those written instruments mentioned in the 3d section. If any reference was had to the former it would have been so expressed, as the whole act evidently keeps up a clear distinction between the two classes of claims.
   Lipscomb, J.

The errors assigned in this cause are:

1st. The plaintiff, by his petition, shows no cause of action against the defendant.

2d. The court should not have rendered a judgment without a jury.

On the first point, it is true the petition does not state what diligence had been used by the plaintiff; it does not aver that suit had been instituted against the maker, or any reason why it had not been done. It may therefore be well questioned whether the petition would have been sustained if objected to at the proper time in the •court below, and, even here, by default. For there are strong reasons to believe that, although our statute dispenses with demand and notice, it was not intended to relieve the indorsee, if he wishes to fix the liability of the indorser, from using due diligence, and as it was essential before our statute that he should aver in his petition, demand and notice in a suit against the indorser, it is reasonable that he should still show that he had used such diligence as is required by the statute. See act of January 25, 1810, sec. 1-6. But, let it be conceded that the petition is bad, and that it could not have been sustained if objected to below, or even would have been reversed on error, if there had been no appearance by the defendant in the district court; we will inquire whether those defects have not been cured and and waived by what appears on the record. What then is the legal presumption to be deduced from the judgment by nil dicitf It has been held by the supreme court of Alabama, with much good reason, it seems to me, “that the withdrawal of a plea admits the cause of action and waives all irregularities in the declaration, and will even cure the want of a declaration.” 6 Potter, 358. It must be remembered that in the state of Alabama, suits are brought by original writ, and the declaration is not filed until the defendant has been brought into court by the original process. The same court declared that although a judgment by nil dioit is not technically “a judgment by confession, yet it cannot by any sound reasoning be distinguished from such an one respecting its effect as a waiver of defense.” Clements v. Johnson, 3 Stuart & Porter, 269. The entry of the judgment shows the presence of the defendant; that he voluntarily withdrew his defense, and says nothing in bar or preclusion of the plaintiff’s action. To admit him, after all this, to insist on matters that would have been available if not waived and abandoned by him — I say, to admit him to do this, would be to prevent the rules of law, to the destruction of right, instead of adapting them to the ends of justice. Indeed it may be well questioned if the ends of justice have been ever advanced by permitting a party, after having appeared and made, or expressly declined making, a defense in the court below, to set up a defense he could have so made then and there, in an appellate tribunal. The supreme court of Louisiana in Fitz v. Couchoix, La. (N. S.) 265, ruled that a judgment by default is an admission of the cause of action, and it would seem to us that, a fortiori, a judgment by nil dioit would be the same. We believe, therefore, that all the objections to the petition were waived by withdrawing the answer.

We will proceed to examine the second error assigned. The objection embraced in this assignment is, that the judgment final, without the intervention of the jury, was not lawful. The supreme court of Louisiana in the case cited above decided that a judgment by default, in an action by an indorsee against an indorser, was final without the intervention of a jury. Under a statute similar in terms to ours, the supreme court of Alabama, in Malone & Co. v. Hathway, 3 Stuart, 26, ruled the same. These decisions were based on the ground that the • demand was for a certain liquidated amount, and there were no damages to be assessed by the jury. According to the English authorities, in all actions of debt, judgment by default was final. See Pettigrew v. Pettigrew, 1 Stuart, 580, where the English authorities are reviewed. But the action of debt could not be sustained on the indorsement of a note or bill by the indorsee, and the reason assigned in the common law boohs is a want of privity of contract between the indorser and indorsee, and the indorsement was held not to he the gist or foundation of the action, but the inducement only; it was used as evidence conducing to prove the amount claimed, and only to he let in after establishing the right to sue. How far those nice distinctions would still prevail, in the absence of statutory provisions in courts where the common law governs, would be with us a profitless inquiry, as our suits are brought and conducted by petition -and answer. We are therefore of opinion that the judgment in the court below must be affirmed.  