W. P. Freeman & Co. v. Moloney

Citations

• 48 Tex. 22

Syllabus

<p>1. Pleading—Practice—Practice in Supreme Court—Trusts. —A brought suit against B and wife on a promissory note secured by deed of trust on land, and, the trustee being dead, prayed the court to appoint a trustee to execute the trust, and for judgment on the note. Defendants, after a general denial, pleaded that the property conveyed in trust was a homestead when their deed was made, and that it still remained such; to which plea the court overruled exceptions filed by plaintiff. A judgment was rendered for plaintiff, for the amount of the note; but neither in it nor in the charge, nor verdict, was any reference made to the trust; and the ease was appealed, without statement of facts or bills of exception. In the judgment, the following recitation occurs: “ And now come the parties by their attorney; and thereupon the court refused to appoint a trustee; to which ruling of the court plaintiff excepts, and gives notice of appeal. Thereupon came a jury,” &c.: Held—</p> <p>1. The record failing to show that an issue had been settled, upon which the rights of the plaintiff to have a trustee appointed depended, there was no error in the court failing to appoint one.</p> <p>2. The plea setting up homestead rights will not he considered by the court, because, whether right or wrong, since it was waived or not relied on by either party at the trial, it became an immaterial issue.</p> <p>3. Facts cannot be regarded as established when not incorporated in the record, so as to enable the court to revise them as substantive parts of it.</p> <p>4. The Supreme Court will not decide upon questions arising upon an issue made by a plea, which plea, upon exceptions, is sustained, when the issue thus made is waived upon the trial, and not passed on by the jury.</p>