Roberts v. Sacra
38 Tex. 580
Tex.
1873
Check Treatment
Walker, J.

The attorneys for both parties in this case appear to apprehend the reversal of the judgment, apparently leaving to us the only question, whether we will reform and render, or reverse and remand.

We prefer the latter. The appellee demurred to the appellant’s evidence in the District Court, and the case went off upon this demurrer. The only questions properly before the court, then, were: Did the defendant owe the debt? and did the note sufficiently prove it? There was no question opened as to the pleadings, or the admissibility of the evidence. The defendant, in the court below, did not and could not controvert the right of the plaintiff *582to recover, in his fiduciary capacity as the guardian of the minor children of E. M. Hudson, after he had filed his cross-action, praying for affirmative relief against the plaintiff in his fiduciary capacity. We think the District Court erred in sustaining the demurrer to the evidence. The judgment is therefore reversed and the cause remanded.

Reversed and remanded.