Davis v. Calhoun

41 Tex. 554

• Court: Texas Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Gould, Associate Justice.

In the absence of a bill of exceptions, the overruling of an application for continuance will not be revised. (Campion v. Angier, 16 Tex., 93; Johnson v. Brown, 25 Tex. Supp., 126.) So, there being no statement of facts, the charge of the court, unless it appéar from the pleadings that it was necessarily erroneous, will furnish no ground for reversal. (Bast v. Alford, 22 Tex., 399; Fulgham v. Bendy, 22 Tex., 64.)

These rules, and the further rule that errors not assigned are considered to be waived, are sufficient to dispose of all the points presented in this case, with one exception. It is objected, and specified in the petition for writ of error, which is made to serve as an assignment of errors, that the judgment is not authorized by the pleadings, and does not follow the statute, because it does not adjudge the property to the plaintiff, and in the event of failure to deliver, order execution for the value against defendant and sureties. The judgment is rendered against defendant and his sureties in his replevy bond for the value of the property sequestered aud replevied, and then provides that the same may be discharged by the delivery of the property. The plaintiff, and perhaps the sureties of defendant, might complain of this judgment, but we do not see any error in it prejudicial to the defendant. As to the pleadings, we think the prayer for a writ of sequestration and for damages sufficient to support the judgment, which the statute itself requires to be entered up on the replevy bond, in case the suit is decided against defendant. (Pas. Dig., art. 5100.) The judgment is affirmed.

Affirmed.