Swift v. Faris

11 Tex. 18

• Court: Texas Supreme Court
• Decided: July 1, 1853
• Status: Published

Opinion

Lipscomb, J.

We believe there was no error in rendering final judgment, upon the default. There was nothing to be assessed by the jury, the award upon which the suit was brought, being for a certain and specific sum, as much so as if the suit had been founded on a judgment; and the award would have supported an action of debt, at Common Law.

Had the suit been brought, on the penalty, stipulated in the bond, for failure to perform the award, it would have been necessary to have impannelled a jury, to assess the actual amount due. We believe, therefore, that this objection is not well taken.

The second error assigned is, we believe, unavailable to the plaintiff in error. The amendment only made the judgment correspond with the award, and is, in principle, the same as making the judgment follow a verdict. Under Article 786 of Hartley’s Digest, this amendment could have been made in vacation; and surely there can be no objection to its being made in Term time. The judgment is affirmed.

Judgment affirmed.