Mason v. Slevin

White, J.

Opinion by It is a rule of practice settled by the unbroken courrent of decisions in this State, that in a judgment by default the facts set out in the petition are to be taken as proved. (Watson v. Newson, 17 Texas, 437; Guest v. Rhine, 16 Texas, 550; Willard v. Condrict, 10 Texas, 214; Swift v. Farris, 11 Texas, 19; Long v. Wortham, 4 Texas, 302; Hall v. Jackson, 3 Texas, 305; Ricks v. Penson, 21 Texas, 508; Trabue v. Stoneham, 20 Texas, 454; Niblett, v. Shelton, 28 Texas, 551.)

It is objected to the petition in this case, that it does not set out the terms of the will of McCune, or allege and aver that it was regularly probated and established. Doubtless, had such an exception been made specially to the petition before trial and judgment, it would have been sustained by the court, and. the pleader required to set forth the will and probate, substantially or in hceo verba. It comes too late after judgment by default.

A partnership can be extended by will so as to continue after the death of the testator. (1 Parsons on Contracts, 5 ed., p. 200, note d.)

Thejudgment of the lower court is affirmed without damages.