Goss v. Pilgrim

Citations

• 28 Tex. 263

Syllabus

<p>This court must presume that the order vacating the grant of the new trial was rendered correctly and in accordance with the agreement of the parties.</p> <p>This court cannot notice the paper purporting to be the agreement of the parties, because, although filed in the cause and copied into the transcript, it is not shown by any statement of facts or bill of, exception that such paper was brought to the attention of the court below, or that the order revoking the new trial was made in pursuance of that agreement, instead of another agreement announced to the court below. (Paschal’s Dig., Art. 1581, Note 613.)</p> <p>This court cannot notice every paper that may have been filed in the cause while pending in the court below, when it is not made to appear, by a a statement of facts, bill of exception, or otherwise, that some action was taken upon it by the court below. (Castro v. lilies, 11 Tex., 39; and Duggan v. Cole, 2 Tex., 381, cited by the court.)</p> <p>The order of sale being in substantial compliance with the statutory directions on the foreclosure of mortgages, in the 119th section of the statute, the portions relating to the vendor’s lien may be treated as surplusage. (Paschal’s Dig., Art. 1480, Note 576.)</p> <p>It being assigned and insisted that the judgment is excessive in consequence of a miscalculation of the amount of the remittitur, which amount is specified in the order of the court below, this court, regarding the judgment as entered by confession, will not consider the question. (2 Tex., 581; 13 Id., 394.)</p>