25 Tex. 91 | Tex. | 1860
The plea of defendant set up a subsequent contract, by the breach of which he claimed to have been damaged. This was excepted to on the ground that there was no consideration for such subsequent contract alleged, as well as on other grounds. The court below correctly sustained this exception to the special plea. This action of the court dispensed with the necessity of the evidence referred to in defendant’s application for continuance. It is presumed that one reason why the application for continuance was held to be insufficient was the defect of this plea. We think that sufficient.
There appear" in the transcript two judgments, just alike, except that the last one refers to the proceedings upon the distress warrant, and the other does not. It is probable that the last one was rendered as a substitute for the other; and an order setting aside the first entry was omitted by mistake. The appellee, to supply this omission, remits in this court any claim by virtue of the first entry of judgment. Therefore, the judgment will he reversed as to the first entry, and here rendered so as to affirm the judgment in the last entry.
Judgment reformed.
