Milliken v. Smoot

Citations

• 64 Tex. 171

Syllabus

<p>1. Evidence.— The action of the court below in excluding the testimony of a witness cannot be reviewed if the bill of exceptions fails to show what his testimony would have been.</p> <p>2. Pleading — Prayeb fob belief — Inconsistency.— Where a petition stated that suit was brought to recover property in the separate right of the wife, and there was no averment of any fact that would make the property community, but the plaintiff prayed that in case the property were proven to be community, he might recover it as such, held, that it was error to charge the jury “to find for plaintiff if the property belonged to either the separate or community estates.” For no matter what the prayer of the petition is, the plaintiff must recover in the right in which he sues and upon the facts stated in his pleadings as the basis of that right. A prayer for relief inconsistent with the facts stated in the petition is of no value.</p>