Wetmore v. Woodhouse, 10 Tex. 33

Wheeler, J. The only objection to the judgment, which is thought to require notice, is the finding and allowance of interest, in the verdict and .judgment. It was not a case in which interest was recoverable, as such; and it was allowed, as interest, and not as vindictive damages, if even it were a case proper for the awarding of such damages. It is objected that this ground for a reversal of the judgment, is not assigned as error.

The court are of ■opinion, and it has been heretofore decided, that where the objection goes to the foundation of the action, and shows the entire absence of a right in the party, on which to rest the judgment, it will not he deemed to have been waived, by an omission specially to point it out in tho assignment of errors. Upon the remittitur of the plaintiff, the judgment will he re-formed; hut as the objection was not taken in the court below, where it might have beeu, and, if brought to the attention of the court, doubtless would have been corrected, it will he at the costs of the appellant.

Beversed and re-formed. Note 6. — Hollingsworth v. Holshousen, 17 T., 41.