1 Tex. 527 | Tex. | 1846
The defendant brings up this case by writ of error, and contends that the judgment of the district court ought to be reversed, because from the petition, it appears that he was sued in a county other than that of his residence (insisting that the statute which authorized the judges to be so sued was unconstitutional) and because of certain other alleged insufficiency and error in the petition and proceedings, which in the view of the case we have taken become wholly immaterial and need receive no further notice.
Had there been a judgment below upon the exceptions to the sufficiency in law of the petition, or had' it been brought to the attention and consideration of the court, then other and different questions would now be presented. That, however, was not the case, but it was permitted to pass unnoticed until it is now first insisted upon
There is, as was said in this case (Campbell v. Stokes), another class of cases of an entirely different character and in which the practice must in some measure be regulated by the sound discretion of this court. “These are cases which the court below has passed upon, but in which this court is asked to reverse or modify the decision upon some new point not urged upon the consideration of the court, upon the arguments of the cause in the court below. * * * This court, in general, will not sustain an illegal judgment merely because the plaintiff in error has neglected to urge every valid objection which might have been insisted on byway of argument in the court below.”
It was of one of this class of cases (Palmer v. Lorillard, 16 Johns. 343), that Chancellor Kent said: “It does not come within the rule that an objection not taken in the court below cannot be taken here. That rule was intended only to-be applied to objections which the party may be deemed by his silence to have waived, and which, when waived, still leave the merits of the case to rest with the judgment. But if the foundatiovi of the action has manifestly failed, we cannot, without shocking the common sense of justice, allow a recovery to stand.” 16 Johns. 343; 9 Pet. 503.
That th & foundation of the action has failed in the case before us, '
We must presume that had the attention of the court below been directed to the exception now insisted on, that court would have sustained the exception, and that the result would have been the termination there of that suit, unless the law had been ascertained to be with the plaintiff. The decision of the court would then have been the subject of our revision, and inquiry would have been directed to the questions now presented in argument. We have, also, repeatedly decided that when there is neither a statement of facts nor bill of exceptions, nor any error disclosed by the record, we must presume that the verdict and judgment below were rightly rendered; and upon sufficient legal testimony.
There being in the record no statement of facts, bill of exceptions or error apparent, we are of opinion that the judgment be affirmed.