Phelps v. Brackett , 24 Tex. 236 ( 1859 )

Roberts, J.

The judgment, as originally rendered, subjects both the community and separate property of the defendant. The petition does not state that the defendant was a feme covert, at the time of the execution of the note. Had she moved to arrest the judgment, so far as it subjected the community property, the motion might have been properly sustained. The petition does state a good cause of action, as a feme sole, and therefore her property is liable for it. Sustaining the motion, therefore, to arrest the judgment, as to the separate property, was erroneous. The judgment must be reversed and reformed, so as to let the judgment stand as originally entered.

The statement of the fact, that she was a feme covert, as made in the motion, comes too late. It should have been pleaded.

Judgment reversed and reformed.

Reversed and reformed.