Gray v. Osborne , 24 Tex. 157 ( 1859 )

Bell, J.

The petition contains no allegation, that the note described in it was either made, or executed, or delivered by the defendants in the court below. The allegation of the petition is, that the defendants are indebted to the petitioner, as is evidenced by a certain promissory note, &c. In a subsequent part of the petition, it is alleged that George H. Gray executed and delivered his certain deed of mortgage, &c.; and the substance of the mortgage purports to be set out in the petition, but it is not alleged that the mortgage discloses the fact, that the note sued on was executed by the defendants.

We are of opinion, that the petition does not disclose a good cause of action against any of the defendants; and certainly it does not against all of them, against whom the judgment was rendered. The demurrer was, therefore, improperly overruled. The cases of Jennings v. Moss, 4 Texas Rep. 452; Frazier v. Todd, Id. 461, and several later cases, decided by this court,-announced the plain and elementary rule, that the plaintiff must show to the court a good cause of action, by appropriate averments in the petition; these averments must be of the facts which constitute the cause of action in the given case, and not merely statements of the evidence by which the cause of action, if stated, might be maintained, or of conclusions derived from the evidence.

The court cannot, in violation of the plainest rules, come to the aid of a party, although it may be easily inferred, from the aspect of the particular case, that there will ensue a long delay in the collection of a just demand. The judgment is reversed, and the cause remanded.

Reversed and remanded.