J. W. Booth et al. v. G. B. Pickett, 53 Tex. 436

Bonner, Associate Justice. The first and second assigned errors relate to the alleged error of the court in not sustaining the demurrers of defendants below, Booth et al., to the pleadings of Pickett, plaintiff below. We do not find these assigned errors to be sustained by the record. A jury having been waived, the cause, both upon the issues of law and fact, was submitted to the court, and judgment generally was rendered for plaintiff Pickett.

The defendants did not demand, as they had the right to do, that a distinct judgment should have been rendered upon their demurrers, and as it appears from the statement of facts that the judgment sought to be revived was a former judgment of the same court, it is evident that the court below had jurisdiction. The third assigned error is, that the court erred in overruling the defendant’s objection to the introduction of the judgment in evidence, as shown by bill of exceptions number one.

This bill of exceptions is to the effect that the defendants objected to the introduction in evidence of the judgment sought to be revived, on the ground that it was not sufficiently described in the pleadings of plaintiff, in not stating the court or county in which rendered, or that it was rendered by any court having jurisdiction. This want of certainty would have been cured by verdict and judgment, and hence the objection was virtually an effort to raise on the introduction of testimony, a question which should have been made and decided on. demurrer to pleadings.

Doubtless counsel for defendants were induced to take this course by reason of the liberal practice indulged when the case is submitted upon both the law and the facts to the judge presiding. In all cases, however, it is the better practice to have the question of the sufficiency of the pleadings settled by demurrer before the parties proceed to trial upon the merits. If not thus determined, but reserved to be made on objection to testimony, the parties may be induced to proceed upon informal pleadings to trial upon the merits, after which it would be too late to amend.

Such practice would lead to confusion, uncertainty, delay and probable hardship, and should not be encouraged. Powers v. Caldwell, 25 Tex., 352; Williams v. Bailes, 9 Tex., 62; Carter v. Roland (recently decided). The fourth assigned error is, that the judgment as entered of record in this case decrees the foreclosure of a vendor’s lien and the sale of property described in “said judgment of the 16th day of April, 1875,” which is error because the petition does not ask for the foreclosure of a vendor’s lien or the sale of that or any other lands.

The object of this suit was to revive by scire facias a former judgment of the same court, in which it was adjudged that plaintiff Pickett recover his debt and have enforcement of his lien.

In a suit like the present there is not the same particularity required as to the pleadings and relief prayed for in regard to the original demand as was in the first suit, or would be, perhaps, had this suit been in debt on the first judgment instead of scire facias to revive; and as we think the pleadings would have been good on general demurrer, and as a special demurrer was not interposed on this point and judgment demanded thereon, we do not think this assigned error well taken. The revival of the judgment for the debt was also a revival for the enforcement of the lien, as an incident.

Judgment affirmed. [Opinion delivered June 15, 1880.]