Swift v. Faris
Texas Supreme Court
Error from Guadalupe. The parties in this case submitted their matters of difference, to the arbitrament of two referees, chosen by themselves, not under the terms of our statute, but at Common Law. The petition alleged the submission, and set out the bond given by each of the parties, to abide by and perform the award. It set out the award, a failure on the part of the defendant to perform the award, and prayed judgment for the amount awarded to the plaintiff.
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Error from Guadalupe. The parties in this case submitted their matters of difference, to the arbitrament of two referees, chosen by themselves, not under the terms of our statute, but at Common Law. The petition alleged the submission, and set out the bond given by each of the parties, to abide by and perform the award. It set out the award, a failure on the part of the defendant to perform the award, and prayed judgment for the amount awarded to the plaintiff. The defendant failed to appear and answer the petitipn, and a judgment final by default was entered up against him, for the amount of…
1Opinion of the CourtLipscomb, 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…
2Cited by3 opinions
- San Antonio Paper Co. v. MorganCourt of Appeals of Texas · 1932
- Miller v. RichardsonTexas Supreme Court · 1873
- Johnson v. DowlingTexas Commission of Appeals · 1881