Welch v. Holmes

1 Tex. L. R. 510

• Court: Texas Supreme Court
• Decided: October 15, 1882
• Status: Published

Opinion

Delaney, J.-

Opinion by Our opinion is that there is no error in the judgment of the court below. A judgment by default admits every material allegation in the petition, except the amount of the damages. This has been decided so often as to render the citation of cases unñeuess?mr~ ~~

' A large number of these cases have arisen out of demands for money, in some form or other, as upon notes, accounts, etc. The case of Clark v. Compton, 15 Texas, 32, was an action of trespass. The court held that the judgment by default established the plaintiff’s right to recover, and fixed the defendant’s liability. The only province of the jury was to fix the amount. In the present case also the judgment establishes the plaintiff’s right to the land, and she could waive the damages.

This is in accordance with the Revised Statutes, art. 4803. So far as the title is concerned, a jury could have been of no service, for -there was nothing to be established by a verdict, and there was no need of evidence, for everything had been admitted.

We think that the judgment below should be affirmed.

Report of Commissioners of Appeals examined, their opinion adopted and judgment affirmed.

Gould, C. J.