Stephenson v. Bassett

51 Tex. 544

Opinion

Bonner, Associate Justice.

The petition in this case

declared upon the first two of three promissory notes given for the purchase-money of land, and to foreclose the vendor’s lien thereon. The third note, which was not due at the commencement of the suit, was also set out, but only for the purpose of a proper application of the proceeds of the sale of the land under the judgment sought.

The pleadings contain a prayer for judgment upon the first two notes only.

Before final judgment the third note became due also; but there was no amendment to the pleadings or further prayer than as above stated.

The court rendered judgment for the plaintiff on all three of the notes, from which this appeal is taken.

Possibly no injustice in fact may have been done the defendant, but, under the rales of pleading and practice, we cannot sanction such a departure from long-established principles of legal procedure, as to authorize a judgment upon a case not made by the pleadings, and as to which the defendant has not had his day in court. (Mims v. Mitchell, 1 Tex., 443 ; Hall v. Jackson, 3 Tex., 309; Culbertson v. Cabeen, 29 Tex., 254.)

The cause was submitted to the presiding judge without the intervention of a jury; and in justice to him, it is proper to say that his attention seems not to have been called to the error, either by objection to the testimony, by the motion for new trial, or otherwise directly.

The error, however, is so fundamental in its character that we cannot presume that the defendant impliedly waived it.

The judgment must be reversed and the cause remanded.

Reversed and remanded.