Boynton v. Chamberlain

38 Tex. 604

• Court: Texas Supreme Court
• Decided: July 1, 1873
• Status: Published

Opinion

Walker, J.

There are some eleven assignments for error in this case, some of which, we think, are well taken.

The Christian name of the defendant Cushing is not set out in the pleadings or process. This is not in accordance with the statute. (Art. 1427, Pas. Dig.)

There is no bill of particulars filed with the petition, nor does any bill appear with the pleadings until after the return day of process.

The petition does refer to an account marked “Exhibit A.” This “Exhibit A” was not filed with the petition. In a word, it may be said, the petition does not set out the plaintiffs’ cause of action in a plain and intelligible manner.

Certain depositions were taken ex parte. The record does not contain the certificate of the clerk — the proper certificate to the publication of the notice required by law.

If these depositions had been correctly taken, they do not prove the plaintiffs’ cause of action; nor does it appear, from the statement of facts, that there was any other testimony offered.

We will not follow the learned counsel in their brief to examine all the assignments of error, but, for the reasons assigned, reverse and remand the case.

Reversed and remanded.