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37 Tex. 312

Mills v. Stuhl

Texas Supreme Court

Decided July 1, 1873

Texas Supreme Court · decided 1873-07-01

Error from Wharton. Tried below before the Hon. T. C. Barden. This suit was instituted upon a promissory note executed by M. S. Stith, B. Mills, and D. G. Mills, to J. H. Dennis and j. D. Whitten, and indorsed by Dennis and Whitten to the plaintiff.

Decided 1873-07-01

Ogden, J.

¶1There was error in this cause in rendering judgment by default, without the intervention of a jury; and the motion to set aside the judgment and grant a new trial should have been sustained.

¶2The note sued on, by its indorsements showed .that the demand was not liquidated. The indorsement states that the note is entitled to a credit for rent of a certain farm, and the amount thus tobe credited should have been proven; and if so, then a jury should have been empaneled. It may be true, as counsel claim, that there was no rent due, but we think, if that be so, it should have been proven to the satisfaction of a jul7*

¶3The judgment is reversed and the cause remanded. ■

¶4Reversed and remanded.

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