17 Tex. 428 | Tex. | 1856
The objection that the amendment of the petition introduces a new cause of action, we do not think well taken. The cause of action was fully set out in the original petition. The amendment had reference only to the relief; enlarging the prayer -of the petition, to enable the Court to decree the relief to which the plaintiff was entitled upon his cause of action.
Nor is the objection tenable, that the decree was not conformable to the case stated, and the relief sought. The petition might have been more certain in stating the facts of the case, on which the plaintiff based his right' to that particular relief; and the prayer of the petition might have been more specific. But there was sufficient certainty to indicate the grounds and nature of the relief sought, and enable the Court to hear the proofs and proceed to a decree thereon, in accordance with the allegations and prayer of the petition. It is sufficient, on error, that such is the nature of the decree which has been rendered. The objection to the want of certainty should have been taken by exceptions, so that the plaintiff might have had the oppor,unity, if necessary, to amend in this particular. The prayer o the petition was for the enforcement of the plaintiff ’s lienf
It is objected that the decree was not warranted by the facts recited therein. If the recital in the judgment were to. be taken to embrace all the facts proved upon the trial, the argument for the appellant on this point would be irresistible. But it is not to be so taken. The decree does not profess to recite all the facts ; and there is no statement of facts. The recitals were unnecessary, and are only to be taken as evidence that such facts were in proof. They do not conclude the supposition that there were other facts proved, which aided in consti. tuting the basis of the judgment; and it is entitled to all the presumptions in its favor, which are indulged inordinary cases where there is no statement of facts. The debt appears to have existed anterior to the note on which this suit is brought; which recognized it as a subsisting debt, and expressed that it was to operate as a lien on the judgment. It may have appeared in proof that the lien, as well as the debt, subsisted, by the agreement ot the parties, anterior to the giving of the note and the sale by the receiver. If so, the property was subject to the lien in the hands of the defendant; and we are to indulge every presumption in favor of the judgment.
The recitals in the decree are principally of matters appearing by the judgment, in the case of Chapman v. Oliver. That judgment was before the Court; but it is not in the record ; nor do the recitals enable us to determine what were its full operation and effect. It is evident that the recitals in the judgment under revision, give but a partial view of the material facts in evidence before the Court. And it would be unsafe and unprecedented, to revise the judgment and adjudicate
The remaining objection to the judgment is that the charge of the-Court was not in writing, as the statute directs. But we have heretofore decided that the mere omission of the Judge to comply with the direction of the statute in this particular, is not error for which the judgment will be reversed. (Reid v. Reid, 11 Tex. R. 585.) We are of opinion that there is no error in the judgment and it is affirmed.
Judgment affirmed.
