Furlow v. Miller , 30 Tex. 28 ( 1867 )

Moore, C. J.

The plaintiffs in error, who were defendants in the district court, were duly served with a copy of the original petition, by which they were notified that a judgment was asked against them simply for the amount due on the note described in the petition. The plaintiffs below, however, subsequently amended their petition, and alleged that the note sued on was given in payment of a tract of land upon which they claimed a vendor’s lien, as security for its payment. Without service of this amended petition, or an appearance of the plaintiffs in error, a judgment by default was entered against them for the amount of the note, and for the sale of the land upon which the vendor’s lien was claimed in the amended petition. In this, we think, under the former rulings of this court, there was manifest error. The amendment sets up a distinct and independent cause of action from that disclosed in the original petition. Important and valuable rights of the plaintiffs in error may he affected by the judgment of the court on the amended petition, in respect to which they are given not the slightest intimation in the original petition that an adjudication would be asked. This being the ease, the judgment by default on the amended petition was erroneous. (Morrison v. Walker, 22 Tex., 19; De Walt v. Snow, 25 Tex., 321.)

And, the case having been submitted to us on a suggestion of delay, which, according to the .practice of the court, opens the record to inspection of errors of this character, the judgment is reversed, and the cause

Remanded.