Sarah Pendleton et al. v. A. Colville et al., 49 Tex. 525

Gould, Associate Justice. The amended petition set up a new cause of action, and as the plaintiffs in error had no notice, actual or constructive, thereof, it was error to render a judgment founded on the matters alleged in the amendment. (Furlow v. Miller, 30 Tex., 29; De Walt v. Snow, 25 Tex., 321; Morrison v. Walker, 22 Tex., 19; Weatherford v. Van Alstyne, 22 Tex., 22.) The assignment of errors fails to specify this as a ground of error, but it is one which is apparent on the record, and is so fundamental, that the court will act upon it, though not assigned. The judgment is reversed and the cause remanded. Reversed and remanded.