
    Leon & H. Blum v. L. M. Ferguson.
    (No. 1371, Op. Book No. 3, p. 461.)
    Appeal from Morris County.
    November 4, 1882.
   Opinion by

Willson, J.

§ 581. Judgment must conform to pleadings; on plea of payment, judgment over is erroneous. Appellants sued appellee upon an account for $215. Appellee pleaded a payment of $200, but did not claim in his pleading that appellants owed him anything, nor pray for any judgment against appellants. Judgment was rendered in favor of appellee against appellants for $5.28 and costs. Held error. The plea of appellee was a plea of payment, not a plea of counterclaim. As a plea of payment, it was properly pleaded, and was legally sufficient, and although sworn to, the law did not require that it should be. [R. S. 1266.] If the $200 had been pleaded a,s a counterclaim, and the defendant had established a demand against the plaintiff exceeding that established against him by the plaintiff, it would have been proper and legal for the court to have rendered judgment for the defendant for such excess. [R. S. 641.] But we know of no rule of law which authorizes a judgment in favor of a defendant for the excess over the plaintiff’s demand of a payment pleaded by the defendant, when no such relief is claimed or prayed for in his pleadings. The judgment rendered in a suit must be authorized by, and conform to, the pleadings of the parties, and it cannot go:beyond the prayer for relief and the relief sought.. [Pinchain v. Collard, 13 Tex. 335; Moore v. Guest, 8 Tex. 119; Menard v. Sydnor, 29 Tex. 257.]

Reversed and remanded.  