Fulgham v. Chevallier

10 Tex. 518

Opinion

Lipscomb, J.

If the facts contained in the petition are true, and they must be regarded as true in deciding- on the exception, the plaintiff clearly showed a good cause of action, and it was error to dismiss the suit on the exception. The answer was full in denying- the equities of the petition, and on this ground the defendant would have been entitled to a dissolution of the injunction but not to a dismissal of the petition. That should have remained to be tried upon the issues of fact formed by the petition and answer as in other cases. Had the plaintiff rested his case on evidence to be procured by the answer of the defendant, the answer being full and furnishing no evidence in support of the plaintiff’s action, it might then have been right and proper to dismiss the suit. But the plaintiff did not so rest his cause of action. The judgment Of the court below is therefore erroneous, and it is reversed and the cause remanded.

Reversed and remanded.

Note 93. — As to the point decided, see Brally v. Hancock, 17 T., 361; Pryor v. Emerson 22 T., 162.