Welch v. Holmes

2 Posey 342

Opinion

Opinion.— 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. The case of Clark v. Compton, 15 Tex., 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. R. S., 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; no need of evidence, for everything had been admitted.

Judgment affirmed.