Smith v. Pegram

On Motion for Rehearing.

We do not know what facts were before the trial court which originally entered the judgment against appellee now under attack. We do know that she did not on the trial, as in the McKay Case (Tex. Civ. App.) 241 S. W. 549, supra, urge her disability of coverture. Instead, she filed a general denial, which had the effect of putting in issue the marriage status alleged by appellant. She apparently acquiesced in its rendition, and cannot now, in our opinion, be heard to complain.

A cross-assignment of error appears for the first time in appellee's motion for rehearing to the action of the trial court in sustaining an exception to appellee’s allegations respecting fraud in procuring the aforesaid judgment. The trial court correctly sustained such exception, in our opinion. If not, the appellee has not properly raised such question.

Motion overruled.