Brown v. Read

33 Tex. 629

• Court: Texas Supreme Court
• Decided: July 1, 1871
• Status: Published

Opinion

Walker, J.

Therecord in this case affords ample ground fcr. the reversal of the judgment. We shall notice but two causes on which the judgment of the court below must be reversed.

Brown, the defendant below, pleaded in abatement of tbe plaintiff’s action, alleging that at tbe time of the filing of the plaintiff’s petition he was a resident citizen of the county of Hardin, and not subject to be sued in the county of Houston.

After an unusual number of amendments in tbe pleadings, both of plaintiff and defendant, tbe plaintiff filed an amended petition on the seventeenth day of March, 1868, more than two years after the commencement of his action.

In this amended petition, he virtually admits the defendant’s plea in abatement, averring that the defendant, at the commencement of the suit, was a transient person, having no fixed domicile known to the plaintiff, and this without meeting the presumption that he might have learned the residence of the defendant by proper inquiry. Upon this state of pleading, the district court should not have retained jurisdiction of the case.

But another and perhaps stronger ground for reversing the judgment of the district court is disclosed in the original petition, which avers that the subject matter of the suit is a debt contracted' to be paid in Confederate money. We can but reiterate the oft repeated decisions of this court, that the courts of the State shall give no relief against contracts of this kind, which have been executed by the parties; nor in any case where the contract has not yet been executed will they adjudge or decree its specific performance, nor award damages for its breach.

The judgment of the district court is reversed, and the cause remanded, that the cross action of the defendant against the plaintiff, in reconvention of damages, may be proceeded in. The appellant to recover his costs.

Reversed and remanded.