Johnson v. Dowling

1 White & W. 615

• Court: Texas Commission of Appeals
• Decided: June 8, 1881
• Docket: No. 1567, Op. Book No. 2, p. 354
• Status: Published

Opinion

Opinion by

Walker, R. S., P. J.

§ 1090. Judgment by default; effect of; writ of inquiry. A judgment by default admits every averment in the petition except the amount of damages. [4 Tex. 381; 11 Tex. 18; 16 Tex. 549; 17 Tex. 437; 21 Tex. 480.] A writ ■of inquiry to assess damages seems formerly to have been necessary, but under the present jury system, unless a jury is demanded, the judge will determine all necessary facts required to be ascertained in order to assess the ■damages.

§ 1091. Judgment íy defaidt; will be set aside, when. A judgment by default will be set aside, or the judgment arrested, if the allegations of the petition are not set forth with such substantial accuracy, or with sufficient certainty, as to inform the court what judgment to render without looking for information to proofs not within the allegations, or where the petition shows no cause of •action. [Hall v. Jackson, 3 Tex. 305; Johnson v. Davis, 7 Tex. 173.]

§ 1092. Affidavit in sequestration or attachment may be referred to in aid of the petition, on general demurrer. The affidavit filed with the petition in a sequestration or attachment suit is so far a part of the petition as to allow, on general demurrer, a reference to it, when the facts stated in it have reference to the allegations in regard to the same facts contained in the petition.

June 8, 1881.

§ 1093. Arrest of judgment; grounds of. As a general rule, a judgment may be arrested upon motion for matter intrinsic upon the face of the record, amounting to a defect which could be reached by general demurrer. It is not, however, every defect which would have been fatal on demurrer that can be reached by a motion in arrest of judgment. If the issue joined be such as necessarily required on the trial proof of the facts so defectively or imperfectly stated, such defect, imperfection or omission is cured by the verdict. [9 Tex. 239; 22 Tex. 405; 28 Tex. 610; 2 Tex. 206; 26 Tex. 76; Gould’s Pl. 65.]

§ 1094. Demurrer; construction of pleading on general exceptions. In passing upon a general exception to a pleading, every reasonable intendment arising upon such pleading shall be indulged in favor of its sufficiency.

Affirmed.