Payne v. Godfrey , 61 Tex. Civ. App. 40 ( 1910 )

Godfrey and Williamson instituted this suit in the form of trespass to try title to recover of J. W. Payne a lot of land in the town of Wellington. Judgment was rendered in favor of plaintiffs for title and possession of the property, and also for the sum of three hundred dollars as damages. It appears from the record that the sum allowed as damages was allowed as the value of a house erected on the lot by the defendant, and by him removed from the premises. In their petition plaintiffs failed to allege that defendant had removed the house, nor did they sue to recover its value, unless they were entitled to such relief under their prayer in general terms, for damages.

Appellant insists that the judgment for the value of the house was not warranted by the pleadings, and we think the contention correct. We are of the opinion further that the error is fundamental, requiring consideration here even though it was not included in the assignments filed by appellant in the trial court. Alamo Fire Ins. Co., v. Davis, 45 S.W. 604, and authorities there cited.

In oral argument counsel for appellant have conceded that there is no merit in the other assignments contained in their brief, and therefore those assignments will not be discussed.

For the error noted above the judgment in appellees' favor for three hundred dollars damages is reversed and judgment is here rendered in appellant's favor in respect to the damages claimed, but in all other respects the judgment is affirmed.

Reformed and affirmed.