Erhard v. Callaghan

33 Tex. 171

• Court: Texas Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Morrill, C. J.

The first error assigned is in overruling defendant’s demurrer.

The cause of the demurrer was that the petition did not disclose the names of the firm of Callaghan & Co.

This cause- of objection, was met by an’amended petition, setting, forth the names.

The second was in not strife-g out a part of the answer of the witness, Evins, to the fifth interrogatory! ' • '

On the trial the reasons assigned for striding out the answer were because it was not responsive" to- the- question."

The question not being in the record, does not enable us to-mate any decision in the assigned error. It is the- duty of the plaintiff in error to bring up-to this court all such papers and proceedings as are necessary to enable ras -to see the force of his errors. Having failed to- do so-, we pass it by.

Third—The court erred in admitting the deposition! of Evxnk

This deposition was objected to in the-district court, hut" no-reason was assigned, either there or here-, and- of course- we cao . consider none, “ •

Eourth error—The court erred in entering, Judgment against the defendant.

The proceedings disclosed a good cause of action; the testimony fully sustained the allegations in the pleadings of plaintiff and the judge, acting also by consent as a jury, could not legally do-otherwise than render the judgment.

The argument' of the counsel for plaintiff would he very much to the purpose if a foundation-- had been laid for it, either in the proceedings in the district court or in the errors assigned.

Parties have ■ a right to waive, either -openly' or tacitly, the , statutes of 29 Charles II, or 18 Elizabeth, re-enaited in this State, and having done so they must abide the consequences.

-Affirmed.