253 S.W. 894 | Tex. App. | 1923
This is an appeal from an order dissolving an injunction upon a hearing, and appellant has filed no brief. Ordinarily, the appeal would be dismissed for want of prosecution because of such failure. See Tsutomu Dyo v. Smith (Tex. Civ. App.)
We agree with appellees that the assignments show no specific error in the judgment, which, in any event, would require a reversal; but appellees' prayer for an affirmance with 10 per cent. damages opens the entire record for the examination and the determination of any error apparent therein, and the record shows that the judgment sought to be enjoined was one rendered by a justice of the peace for certain goods, wares, and merchandise alleged to have been sold to appellant, and the statement of facts included in the transcript shows that upon the hearing to dissolve it was "agreed in evidence that no certified sworn statement of the account sued upon is on file or was offered as proof when the above judgment was taken, nor any other testimony." It has been held to be fundamentally erroneous to so render judgment. See Building Loan Association v. Newman (Tex. Civ. App.)
For the reasons indicated, we conclude that the judgment must be affirmed, but, because of the error pointed out we think appellees' application for the assessment of 10 per cent. damages should be denied.