P. H. Cross & Co. v. Huffaker & Harris

1 White & W. 53

• Court: Court of Appeals of Texas
• Decided: January 29, 1881
• Docket: No. 1289, Op. Book No. 3, p. 489
• Status: Published

Opinion

Opinion by

White, P. J.

§ 136. Judgment by default; suggestion of delay. Judgment by default and writ of error prosecuted. Defendant in error suggested delay. Held, 1. Suggestion of delay necessitates a reversal of the judgment for any substantial error committed in the court below in the proceedings and trial of the cause. 2. The petition in this case is insufficient, because it shows upon its face that suit was brought before the maturity of the debt, and, therefore, plaintiff’s cause of action had not accrued. 3. The judgment is erroneous, because the suit was upon an account, and no evidence was adduced to prove the cause of action. 4. The suit was upon an unliquidated demand, and the damages were assessed by the clerk, and not by a jury, as was requisite at the time of the trial. [Pas. Dig. art. 1508.] 5. The suit was upon an unliquidated demand, and by its recitals the judgment shows that it was rendered upon a “cause of action liquidated and proven by an instrument in writing, ” and no such instrument is declared upon in the petition.

January 29, 1881.

Reversed and remanded.