Sneed v. Moodie

Decided July 1, 1859

Texas Supreme Court · decided 1859-07-01

Error from Travis. Tried below before the Hon. Alexander W. Terrell. This suit was brought by John Hoodie against Seborn G. Sneed, on a promissory note. The petition alleged, “ that the defendant is indebted to the plaintiff, as is evidenced by a certain instrument of writing, (which is prayed to be taken as part of this petition,) a copy of which is as follows: “ ‘Due John Hoodie $190,875, f°r value received, to bear ten per cent, interest per annum, until paid.

Good law ✅— No negative treatment on recordhow we know

Decided 1859-07-01

How this case has been cited

Cited by 13 later decisions — most recently February 1941

13 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Wheeler, C. J.

¶1On the authority of Jennings v. Moss, 4 Texas Rep. 452, it must be held that the petition is insufficient, and that the court, therefore, erred in overruling the demurrer. It is an elementary principle in pleading, that the facts constituting the right or liability of a party, must be averred. But there is no averment that the defendant made or signed the note, or of any fact from which the legal inference of a liability on his part can be drawn.

¶2It is to be observed, that the ruling of the court upon the demurrer, is not assigned as error. But the error is one which goes to the foundation of the action, and which, therefore, the omission to assign, cannot be deemed to have waived. The petition shows no cause of action, and the recovery, therefore, cannot be maintained, though the error is not assigned. (Salinas v. Wright, 11 Texas Rep. 577.) The judgment must be reversed, and the cause remanded for further proceedings.

¶3Reversed and remanded.