Smith v. Tipps , 1914 Tex. App. LEXIS 1341 ( 1914 )

If the allegations in the second amended petition alone should be looked to in determining the question made as to the sufficiency of the pleadings to support the judgment, it is manifest the answer must be in the negative; for no facts showing appellee to be entitled to recover the land, or to relief of any kind, are stated in that petition. It contains merely a prayer that title to the land be devested out of Smith and Watkins and vested in appellee, without stating why such a judgment should be rendered. Doubtless appellee intended the petition to be construed as a part of his first amended petition, and perhaps of his original petition. If it should be so construed, the judgment still could not be said to be warranted by the pleadings; for it would then appear that appellee was in the attitude of asking both a judgment for the debt evidenced by the notes and a foreclosure of the lien retained, and for a rescission of the contract of sale out of which the debt originated. He might be entitled to the one or the kind of relief, according to the facts, but certainly he was not entitled to recover on the notes and to also recover the land. As, in the absence of an election by him as to whether he would seek a recovery on the notes and so affirm the contract whereby the land was sold to Smith, or would seek a recovery of the land and so disaffirm that contract, or of proper pleading in the alternative, the court could not elect for him nor give him alternative relief, it is not believed the judgment could be held to be supported, if all appellee's pleadings should be construed together, as he seems to have intended they should be.

His pleadings, however, could not be so construed without ignoring rules governing in the trial of cases in district courts. Rule 13 (142 S.W. xviii) provides that the party amending his pleadings "shall point out the instrument, with its date, sought to be amended, as ``original petition' * * * and amend such instrument by preparing and filing a substitute therefor, entire and complete in itself," etc., and Rule 14 provides that "unless the substituted instrument shall be set aside on exceptions for a departure in pleading, or on some other ground, the instrument for which it is substituted shall no longer be regarded as a part of the pleading in the record of the cause, unless some error of the court in deciding upon the necessity of the amendment, or otherwise in superseding it, be complained of, and exception be taken to the action of the court, or unless it be necessary to look to the superseded pleading upon a question of limitation." And see Wilson v. Vick, 51 S.W. 45; Dunlop v. Dunlop, 130 S.W. 715; Ry. Co. v. Halsell, 98 Tex. 244, 83 S.W. 15.

Because the judgment is without support in the pleadings, it will be reversed, and the cause will be remanded for a new trial.