55 Tex. 251 | Tex. | 1881
The original petition, as compensation for locating and surveying of ten 640-acre certificates and returning the field notes to the general land office, claimed one-third of the land so located, or the sum of $214 for each certificate so located, as the value of plaintiff’s services. After service of this petition, and without any appearance by defendants, an amended petition (wrongly styled “supplemental”) was filed, alleging the location, etc., of another 640-acre certificate, and claiming like compensation therefor. This was setting up an additional or new cause of action, and, no notice thereof having been given, it was error to render a judgment by default.embracing this new demand. Morrison v. Walker, 22 Tex., 18; DeWalt v. Snow, 25 Tex., 323; Furlow v. Miller, 30 Tex., 28.
It is suggested by defendant in error that a remittitur be entered of one-eleventh of the judgment, as the amount thereof rendered on this new cause of action, seeking thereby to cure the error. But unless it clearly
As this view must lead to a reversal of the judgment, it is believed to be unnecessary to pass upon the question whether the petition stated a cause of action. It is beyond question that it was defective on special demurrer, and we may presume that before another trial it will be amended so as to avoid any such question in the future. The judgment is reversed and the cause remanded.
Reversed and remanded.
[Opinion delivered May 17, 1881.]