The Texas Law Reporter (Volume 2)

Purchase of this book includes free trial access to www.million-books.com where you can read more than a million books for free. This is an OCR edition with typos. Excerpt from book: under it, the court would have to look to the facts set forth in the petition alone, to judge of the correctness of the removal. It held that the petition performed the office of a pleading. Upon its statements, in connection with the other parts of the record, the courts must act in declaring the law upon the question. It should therefore set forth the essential facts, not otherwise appearing in the cause, which the law has made conditions precedent to the change of jurisdiction. If it fails in this it is defective in substance and must be treated accordingly. It is the office of pleadings to state facts, not conclusions of law. It is the duty of the courts to declare the conclusions, and of the parties to state the premises. The court goes on to say, They (the defendants) state no facts to show the right they claim, or to enable the court to see whether it necessarily depends upon the construction of the statutes. Certainly ah answer containing only the statements of the petition would not be sufficient for the presentation of a defense under the provisions of the statutes relied on. In pleading the statute, the facts must be stated which call it into operation. The averment that it is in operation is not enough, for that is the precise question the court is called upon to determine. The court concludes the subject by saying that if these facts, i. e. the facts from which the conclusion stated in the petition is derived, sufficiently appear in the pleadings, the petition for removal need not restate them; but if they do not, the omission must be supplied in some form, either by the petition or otherwise. It is needless to add arguments to these so well stated in the above opinion. Although upon a different statute the reasoning applies with equal force ...