
    John Foster and Rachel Foster v. Francis W. Smith
    Appeal from Colorado County.
    According to the correct rule of practice, no judgment ought to he reversed in this court on the ground that the verdict is not supported by the testimony, unless there had been a motion for a new trial in the court below, and in cases hereafter decided in the district courts, such rule will be enforced in this court. [Post, 311; 30 Tex. 568 ; 39 id. 186.]
    The practice which has heretofore prevailed, of bringing cases into this court upon that ground alone, without such motion having been made in the court below, will prevent the operation of the rule in cases heretofore decided in the lower courts.
    This suit was brought to recover the amount of an open account for medical services. The account was made out as follows: “John and Rachel Foster to Francis W. Smith, M. D., Dr.” The items in the account appeared to be for services rendered to John Foster and his daughter, and for medicines. The nature of the connection between John and Rachel Foster is not alleged. Rachel Foster pleaded coverture in abatement, but did not swear to her plea. Both defendants pleaded a general denial and the statute of limitations. There is no bill of exceptions in the transcript. The statement of facts is as follows: “Testimony: The plaintiff introduced W. A. Shepherd, who testified that he conversed with John Foster, who did not deny the justice of the account but admitted it, as witness understood, in general terms; the witness was a physician and did not think the charges high. Thomas Thatcher called by defendant, testified that he knew a Rachel Foster, who was the wife of John Foster, but could not say whether she was the same person with defendant; did not know any other Rachel Foster. (Signed) "William J. Jones, District Judge.”
    There was a verdict and judgment for plaintiff against both defendants.
    
      
      J. Webb, for appellants,
    contended that the judgment ought to reversed, because there was no evidence to charge Rachel Foster. The admissions of John Foster, if sufficient to charge him, were wholly inadmissible if applied to Rachel Foster. There is no allegation of partnership, and the suit being against them jointly raises no presumption that they were partners. The admission of an alleged partner cannot be received against his alleged copartner until the partnership is proved. Gow. on Part. 193.
    If John and Rachel Foster were man and wife, as is alleged in the plea (if the plea be considered as before the court), then there was a misjoinder of parties, as the wife could not be joined with her husband in contracts, made after marriage. 2 Roper, 77.
    The “ testimony ” having been stated and certified by the presiding judge, this court will presume that the statement contains all the evidence offered at the trial.
    
    
      Robinson and Fisher, for appellee.
    There is no statement of facts sent up in this case. No evidence appears on the record that was given below, and certified as such. The judge who presided merely signs a piece of paper, headed “ Testimony.” This court will not disturb the verdict from the mere absence of a full transcript of all the facts that were proven below. In order to disturb the verdict, it is necessary that the judge certify the facts given in the record, as the only facts that were proven. Dal. Dig. 379, G18.
    The plea in abatement ought to have been sworn to by the party pleading it. 4 Laws Tex. 89.
   Lipsoomb, J.

This suit was brought to recover the amount of an account for professional services as a physician. The appellants are not called husband and wife in the petition of the plaintiff below. The fact of the coverture of Rachel Foster was pleaded, but it was not sworn to. There was also the plea of the statute of limitations, and a general denial. There was no evidence of the coverture of Rachel Foster, and she seems to have been treated as a feme sole; and, as there was no bill of exceptions, we shall consider her as such in this court. From the account exhibited in the record, it appears that the services were rendered to John Foster and daughter; and the only evidence of its. correctness was the acknowledgment of John Foster. There is not the slightest ground for presuming a liability on the part of Rachel, nor was there any evidence to show privity or connection between the two defendants. The acknowledgment or admission of John Foster could not affect her rights, nor could it be properly the ground of a verdict against any person but himself; it ought, therefore, to have been set aside, and no doubt would have been, on motion in the court below. We will here take occasion to say that according to what is believed to be the correct rule of practice, no judgment ought to be reversed in this court, merely on the ground that the verdict was not supported by the testimony, unless a motion had been made in the court where the verdict was rendered for a new trial, and overruled; and then the evidence and the grounds on which the motion had been made should be fully spread upon the record. We are confident in the assertion that from the present loose mode of sending up the statement of facts, injustice must be frequently done to parties/ and equal injustice to ourselves, in being compelled to labor out from such uncertainty the points really in controversy. We are aware, however, that a different rule has prevailed, and we are not willing to change it in cases already decided in the lower courts; but, in cases to be decided hereafter, the rule believed by us to be the correct one and best calculated'to promote the ends of justice will be enforced.

Because it appears from the record in this case that there was no evidence in the court below to show the liability of one of the defendants, the judgment is reversed and the cause remanded, at the cost of the appellee, with instructions to the court belo'w to allow the parties to amend, should it be desired.  