Houston & Texas Central Railway Co. v. Shults

OPINION ON REHEARING. STREETMAN, Associate Justice. This appellant’s motion for rehearing, our attention is directed to a phase of the case which was not pointed out in the briefs in this cause. The damages claimed by appellee in his pleadings were itemized, and the total amount claimed was $649.68, with interest thereon from January 6, 1903. The judgment was rendered April 7, 1903, and awards plaintiff $663.78 as damages. A calculation of the interest for the time stated upon the amount of damages claimed, shows that the verdict was in excess of the amount claimed in the pleadings. This constitutes fundamental error and requires a reversal of the case. McCord v. Holloman, 46 S. W. Rep., 114. It is also insisted that this court erred in refusing to consider appellant’s assignments of error complaining of the excess in the verdict over the amount of damages shown by the evidence. The writer entertains some doubt as to whether the rule with reference to assignments of error will be enforced to the extent announced in the original opinion in this case; but however that may be, since the case must be reversed for the error herein stated, and the evidence is not in such condition as to authorize this court to render a judgment herein,'the judgment will be reversed and the cause remanded. Motion granted. Judgment reversed and cause remanded.