20 Tex. 2 | Tex. | 1857
To the first assignment of error defendant objects : first, that the general denial, which was the only plea in the record inspected by the Court, is a nullity, and that therefore the entry is correct; and secondly, that the recital is unnecessary, and merely surplusage.
Believing the last objection to be well founded, it is unnecessary to discuss the first. The recital shows that the finding of the Court upon the issue submitted was for the plaintiff. That the Court arrived at that determination “ upon an inspection of the pleadings” alone, cannot be seriously entertained. It is a merely idle and superfluous expression of the person who drew up the judgment. An authority in point, for the rejection of this incongruous expression, is to be found in the case of Wooton v. Manning (11 Tex. R. 327.)
When a jury was waived and the cause submitted to the Court, it became assimilated to a cause in chancery; and it is well established in American practice not to include in the judgment a statement of the facts upon which it is predicated. That practice has been adopted by our Courts. (Hamilton v. Ward, 4 Tex. R. 356.)
The Court, in a case thus submitted, would, very appropriately, inspect the pleadings, as well as hear the evidence adduced; and the case of Chapman v. Sneed, decided at Austin, 1856, (17 Tex. R. 428,) establishes the rule that a recital of part only of the facts necessary to sustain the judgment did not vitiate it.
Whether, then, the statement “ upon inspection of the pleadings” be regarded as inconsistent, or as only partial, it will not render the judgment erroneous.
It is not intended to be intimated that when a jury tries a cause, it may not be necessary to recite their verdict in the judgment.
As to the second assignment of error, the defendant has remitted the excess of the judgment.
Judgment reformed.