Carpenter v. Knapp, Stout & Co.

1 White & W. 624

• Court: Texas Commission of Appeals
• Decided: June 8, 1881
• Docket: No. 1652, Op. Book No. 2, p, 372
• Status: Published

Opinion

Opinion by

Watts, J.

§ 1111. Judgment by default; when not supported by allegations. Defendants in error sued plaintiff in error and one E. L. Carpenter. Their cause of action against E. L. Carpenter was an indebtedness by account of $3S8.80. Their cause of action against appellant was alleged to be that E. L. Carpenter had assigned to him a stock of goods, wares and merchandise for the fraudulent purpose of hindering, delaying and defeating the creditors of said E. L. Carpenter. The petition prayed judgment against E. L. Carpenter for the debt, and prayed that the alleged fraudulent transfer to plaintiff in error be set aside, etc. Defendants did not answer, and judgment by default was rendered against them jointly for the amount of plaintiff’s account, and for interest and costs. Held, there is no allegation in the petition which would authorize a money judgment to be rendered against plaintiff in error. It is not claimed in the petition that he was indebted to defendants in error. It is not sought therein to recover any monied judgment against him: besides, there is no prayer to that effect. The judgment, so far as plaintiff in error is concerned, is without any basis whatever in the pleading to support it. It has been frequently held that this is a fundamental error requiring the reversal of the judgment. [Dean v. Lyons, 47 Tex. 21; Parker v. Beavers, 19 Tex. 406; Thompson v. Thompson, 12 Tex. 327; Hall & Jones v. Jackson, 3 Tex. 305.]

June 8, 1881.

Reversed and remanded.