37 Tex. 431 | Tex. | 1873
An appeal was taken in this cause from a judgment of the District Court of Eains county; but no assignment of errors accompanies the transcript, and no briefs have been filed by appellant or appellee, and under the usual practice of this court we would be justified in dismissing the cause for the want of prosecution, and without further notice. But upon examination, we discover an error apparent upon the face of the record, which may have worked great injustice to one of the parties thereto, and which demands a reversal of the judgment.
Suit was instituted upon a promissory note for fifty-nine dollars and sixteen cents, and to foreclose the vendor’s lien upon a- certain tract of land. The defendant excepted to the petition, and plead to the jurisdiction of tlje court, because the amount claimed was under one hundred dollars. But there being an allegation in the petition that the note was given in part payment of the purchase-money for land, and a prayer for the foreclosure of the vendor’s lien, a question of fact was presented which could legally be decided only by á jury. And that appears to have been almost the only ground of deiense relied on.
There were but two witnesses who testified on the trial in
The foregoing is the substance of all the evidence in support of the allegation that the note was given for the purchase-money of the land in question, and under that evidence, we think the court should have instructed the jury, in clear and positive terms, that there was no evidence whatever to support the allegation and claim of a vendor’s lien. And upon the verdict of the jury in response to such an instruction, that the payment of the note sued on was not secured by a vendor’s lien upon the land described in plaintiff’s petition, the cause should have been dismissed for the want of jurisdiction in the District Court. We are of the opinion that the court erred in its charge to the jury as herein indicated, and that the verdict and judgment are not supported by the law or the facts of the case. The judgment is therefore reversed and the cause remanded.
Eeversed and remanded.