Hall v. Jackson
| Decision Date | 31 December 1848 |
| Citation | 3 Tex. 305 |
| Parties | EDWIN HALL and LEVI JONES, Plaintiffs in Error, v. OLIVER P. JACKSON, Defendant in Error |
| Court | Texas Supreme Court |
Writ of Error from Harris County.
The court, in ordering a change of venue under the act of 16th January, 1843, must be presumed to have acted rightly, until the contrary appears. The presumption is, that the circumstances existed which brought the case within the provisions of the statute. [12 Tex. 327;19 Tex. 406.]
Facts not alleged, though proved, cannot form the basis of a decree or judgment. [1 Tex. 443;4 Tex. 381;6 Tex. 313;9 Tex. 73;10 Tex. 213;15 Tex. 159;16 Tex. 400, 549;17 Tex. 438;21 Tex. 508;25 Tex. 352;28 Tex. 219.]
That a judgment has been taken by default does not dispense with the rule which requires that the proofs shall conform to the allegations; and that the latter must be sufficient to constitute a legal basis on which to predicate the judgment.
To maintain a judgment by default, the petition must set forth a cause of action, with substantial accuracy, and with sufficient certainty to inform the court what judgment to render, without looking for information to proofs not within the allegations.
This was a suit to compel the specific performance of a contract, instituted by the defendant in error against the plaintiffs in error, in the Galveston district court, and returnable to the fall term, 1841.
The petition is as follows: etc.; concluding with a prayer that the defendants be decreed to make to the plaintiff, a title to “all such lands as shall be proved to have been located, according to the terms of the agreement.”
The receipt referred to in the petition is in these words: (Signed) ““EDWIN HALL.” (Indorsed) “OLIVER P. JACKSON.”
Service was perfected in April, 1841. Nothing appears of any further proceedings in the cause until the spring term, 1843, when the following entry appears to have been made: “In this case, the presiding judge being of counsel, it is ordered that the venue of the case be changed to Harris county.”
The case was accordingly transferred to the county of Harris, and the petition filed in the office of the clerk of the district court of that county on the 22d day of January, 1844. At the spring term thereafter, an interlocutory judgment by default was taken; and on the 2d day of May, in that term, the final decree or judgment by default was entered, as follows: “A judgment pro confesso having been heretofore, at this term of the court, taken by the plaintiff in this cause, and the same having come on to be heard for final decree; and it appearing to the court that the defendant, Hall, on the 28th day of June, 1838, received from the plaintiff for location, upon the terms specified in the plaintiff's petition, land scrip of the republic of Texas, amounting to 2,880 acres; and it further appearing that said Hall and Jones consolidated certain scrip, of which that received from plaintiff was a part; and that the whole was located and surveyed in one connected body, on the island of Galveston, in the county of Galveston; and that, for the whole quantity, including said scrip received by said defendant, Hall, from said plaintiff, a patent in the name of the republic of Texas, has issued to said defendants as joint tenants, or tenants in common; and also, that the said defendant, Jones, had notice that the said defendant, Hall, held said scrip of said plaintiff, for the benefit of said plaintiff, upon the terms of the agreement mentioned in said plaintiff's petition; and it also appearing right and equitable that the defendants should convey,” etc., proceeding to decree a conveyance by the defendants to the plaintiff of 2,160 acres of land upon Galveston island, in the county of Galveston, of the survey made and patented in the name of the defendants. The decree concludes by appointing commissioners “to lay off and have surveyed, according to quality of the lands patented to the said defendants, twenty-one hundred and sixty acres; and that, within six months, they file their report, together with a plat of the survey and field notes; and that said report, unless objected to at the next term of this court, constitute a part of this decree, which is otherwise final.”
Upon this decree, a notice was issued to the commissioners appointed, and execution for costs against the defendants, who subsequently obtained this writ of error.
FRANKLIN for plaintiffs in error.
1st. The district court of Harris county had no jurisdiction of this cause, the judge presiding in Galveston having no authority, “ mero motu,” to change the venue or transfer the cause to Harris county.
2d. The judgment or decree entered was irregular and erroneous, the judgment by default not having been previously entered.
3d. The petition presented a case so vague, uncertain and indefinite, that no judgment or decree could be made in accordance with its prayer.
4th. The judgment or decree rendered was irregular, and founded on a statement of facts that did not exist; and there was no allegation in the petition under which such facts could be presumed or could have been introduced in evidence. 5th. No jury was impaneled to find the facts, the suit not being for a liquidated demand.
JONES, same side.
WEBB for defendant in error.
There is no statement of facts in the record, except such as is found in the decree of the court, and that statement of the facts fully sustains the decree, in the terms in which it was rendered. [Wiscart vs. Dauchy, 1 U. S. Cond. R. 148.]
The defendants made no objection, in the court below, to the decree, although they had notice of the pendency of the suit more than twelve months before it was rendered. They filed neither answer nor plea, nor in any other way denied the allegations of the plaintiff's petition.
They could not have been taken by surprise, because the decree was not rendered in Harris county until twelve months after the change of venue was ordered; and having had notice of the pendency of the suit, they must have had notice of the change of venue.
No objection having been made to the order of the judge for a change of venue, the presumption is that it was assented to by the parties.
To reverse the judgment, several objections to its legality are urged; of which, those which are deemed to require particular notice are, in substance:
1. That there was no legal change of venue, and that the district court of Harris county had no jurisdiction of the case.
2. That the...
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