John Foster and Rachel Foster v. Francis W. Smith, 1 Tex. 70

Lipsoomb, J. This suit was brought to recover the amount of an account for professional services as a physician. The appellants are not called husband and wife in the petition of the plaintiff below. The fact of the coverture of Rachel Foster was pleaded, but it was not sworn to. There was also the plea of the statute of limitations, and a general denial. There was no evidence of the coverture of Rachel Foster, and she seems to have been treated as a feme sole; and, as there was no bill of exceptions, we shall consider her as such in this court.

From the account exhibited in the record, it appears that the services were rendered to John Foster and daughter; and the only evidence of its. correctness was the acknowledgment of John Foster. There is not the slightest ground for presuming a liability on the part of Rachel, nor was there any evidence to show privity or connection between the two defendants.

The acknowledgment or admission of John Foster could not affect her rights, nor could it be properly the ground of a verdict against any person but himself; it ought, therefore, to have been set aside, and no doubt would have been, on motion in the court below.

We will here take occasion to say that according to what is believed to be the correct rule of practice, no judgment ought to be reversed in this court, merely on the ground that the verdict was not supported by the testimony, unless a motion had been made in the court where the verdict was rendered for a new trial, and overruled; and then the evidence and the grounds on which the motion had been made should be fully spread upon the record.

We are confident in the assertion that from the present loose mode of sending up the statement of facts, injustice must be frequently done to parties/ and equal injustice to ourselves, in being compelled to labor out from such uncertainty the points really in controversy. We are aware, however, that a different rule has prevailed, and we are not willing to change it in cases already decided in the lower courts; but, in cases to be decided hereafter, the rule believed by us to be the correct one and best calculated'to promote the ends of justice will be enforced.

Because it appears from the record in this case that there was no evidence in the court below to show the liability of one of the defendants, the judgment is reversed and the cause remanded, at the cost of the appellee, with instructions to the court belo'w to allow the parties to amend, should it be desired.