15 Tex. 159 | Tex. | 1855
A preliminary question is presented, whether, in a case like the present, where service has been by publication, and the judgment rendered on an ex parte hearing, the defendants in the judgment are entitled to prosecute a writ of error, where the Statute gives another remedy by a petition of review. (Hart. Dig. Art. 783.) We are of opinion that it was not the intention of the Statute to take away the right to prosecute a writ of error from the judgment; but to give an additional remedy in such cases; and that the remedies are concurrent. The right to prosecute a writ of error from a judgment thus rendered, has been heretofore maintained by this
On the merits, it is clear that the present judgment must be reversed. The Statute provides that, on the rendition of judgment, where service has been by publication only and the case heard ex parte, “ the Court shall make out and incorporate “ with the record of the case, a statement of the facts proved “ therein, on which the judgment was founded.” (Hart. Dig. Art. 782.) The Statute is peremptory ; and we have heretofore decided that an omission to comply with its requirement will be fatal on error. (McFadden v. Lockhart, before cited.) The Statute was not complied with in the present case. The recitals in the judgment cannot be deemed a compliance. They are simply conclusions, deduced by the Court, from the evidence, and are not a statement of the facts proved upon the hearing ; that is, a statement of all the material facts of the case, as they were given in evidence, which the Statute requires. On this ground, therefore, it is clear the judgment must be reversed.
There are other grounds of error assigned, which, in reference to the future conduct of the cause, it is material to consider, and which are equally fatal to the judgment. This was a judgment by default. It appears, by the recitals in the judgment itself, to have been rendered upon proofs not conformable to the plaintiff’s case, as made by the averments of his petition. The petition does not contain averments of fact, under which material facts, recited as the basis of the judgment, could have been admitted in evidence. And in the case of Hall et al. v. Jackson, (3 Tex. R. 305,) it was held, that facts not alleged, though proved, cannot form the basis of a judgment. The present, in its most prominent features, is very similar to the case just cited. The judgment undertakes to divest the title of the defendants, Keney and Yocum, in a certain designated tract of land, when the petition contains no matter of averment and description by which to identify any particular land, and does
It would seem to result from the view we have taken of the ease, that the judgment should be reversed and the case dismissed. But as it is possible the petition may be so amended
Reversed and remanded.