Tarlton v. Weir

1 White & W. 57

• Court: Court of Appeals of Texas
• Decided: February 9, 1881
• Docket: No. 1203, Op. Book No. 3, p. 497
• Status: Published

Opinion

Opinion by

Winkler, J

§ 142. Amendment; due order of pleading. It is no infraction of the rule which requires a defendant to file his answer in the due order of pleading, to allow him to amend his original answer by filing a special exception amendatory of his general demurrer, which had been filed in due order of pleading.

§ 143. Immaterial rulings will not reverse a judgment. Where rulings of the court relate to questions which are superseded in their application to the particular case by some principle which underlies them, they are immaterial, and therefore can afford no ground for reversing the judgment. [Davis v. Loftin, 6 Tex. 489.]

§ 144.- Judgment; action of debt on; may be maintained by assignee of. An action of debt may be maintained upon a judgment without resorting to the statutory remedy by scire facias. [Townsend v. Smith, 20 Tex. ; Graves v. Hall, 13 Tex. 382; Austin v. Townes, 10 Tex. 26; Johnson v. Murphy, 17 Tex. 219.] And such suit may be maintained by the assignee of the judgment.

February 9, 1881.

§ 145. Married woman; suit against on debt created dum sola; proper judgment in such case. Where judgment is rendered against a married woman upon an indebtedness incurred by her before marriage, the judgment should be that execution issue against her separate property only, and should exempt the property of the husband from execution upon such judgment. [Roundtree v. Thomas, 32 Tex. 288; Nash v. George, 6 Tex. 236; Booth v. Cotton, 13 Tex. 359.] Quere, is community property subject to such execution? [Nash v. George, 6 Tex. 236.]

§146. Costs; extent of plaintiff’s liability for. When the plaintiff recovers judgment for costs, but is unable to make them out of the defendant, he is liable to the officers of the court for so much only of the costs of the suit as was incurred in his behalf, and the liability of his surety for the costs is the same. [Cleveland v. Henderson, 4 Tex. 182.]

Affirmed.