Another v. Another
| Decision Date | 01 January 1855 |
| Parties | JOHNSTON AND ANOTHER v. MARSHALL AND ANOTHER. |
| Court | Texas Supreme Court |
Where there were two defendants, only one of whom was served, and the answer was in the plural, as for both defendants, it was held, in the absence of further showing, that the answer was for both.
Where it appeared by bill of exceptions that an amended answer (plea of payment) was struck out because filed without leave, and that the defendants thereupon asked leave to amend, “and defendants' counsel, being called on by the court, declined to make any showing against the merits of the cause, and the court declined to delay the cause for the amendments,” it was held that it must be presumed that by a “showing against the merits” the court below intended a plea to the merits, and not an oral showing, and that there was no error.
Appeal from Cherokee. The first answer was a general demurrer and general denial. The second answer was same, with plea of payment also. It was filed at one term, and the motion to strike out was made at the next. The bill of exceptions stated that after the second answer had been struck out “defendants, by their counsel, moved the court for leave to amend, and defendants' counsel, being called on by the court, declined to make any showing against the merits of the cause, and the court declined to delay the cause for the amendments.” Verdict and judgment for plaintiffs.
Hood & Wiggins, for appellants. The court erred in striking out answer of the defendants filed on the 11th May, 1854, on the ground that the same was filed without law. It will be borne in mind that the pleas stricken out had been on file more than six months, and that the motion to strike out was first sprung at the very time of trial.
We know that this court has intimated in several cases that irregular pleadings should not be encouraged, but we have examined in vain for any decision of this court that will sustain the rulings in this case. The pleas had long been on file; consequently no surprise to the other party. They contained two simple counts, one a payment of the note in cash, the other a payment of it by a draft, either of which was good if sustained by proof, and not at all calculated to hinder judgment without proof.
The facts in this case are very different from facts in the cases of Coles v. Kelsey, 2 Tex. R., 541; Thomas v. Young, 5 Tex. R., 253; Tulane v. McKee, 10 Tex. R., 335, and Levin v. Houston, 8 Tex. R., 94. See the case of Coles v. Kelsey.
There was but one defendant; he pleaded to merits; then in a few days filed peremptory exceptions and other answers. In the case of Thomas v. Young only one defendant; he pleaded to merits, then repleaded without leave; District Court refused to strike out; this court sustained action of District Court, but say such pleading is irregular. In the case of Tulane v. McKee this court only say, in effect, that a party is not under all circumstances entitled to amend before announcement for trial. By a reference to it it will be seen that many pleas were filed during the same term in quick succession. In the case of Levin v. Houston, six months after pleas to merits, on the very eve of trial, a plea was offered well calculated to surprise the opposite party. We think the case of Connell v. Chandler (11 Tex. R., 249) decides conclusively that this assignment of error is well taken.
“The court erred in refusing to grant defendants leave to amend answer after second answer was stricken out.”
This court has again and again decided that after announcement of ready for trial parties have the right to amend. (See Croft v. Rains, 10 Tex. R., 520; Moss v. Jennings, 4 Tex. R., 452; Hollis v. Border, 10 Tex. R., 360.)
The bill of exceptions shows that instead of leave to amend being given as a matter of right when prayed for, the court called on the counsel of defendants orally to make orally a showing to the merits.
S. P. Donley, for appellees. This court has decided that the practice of filing pleas at different times after the answer has been filed without first obtaining leave of the court is an irregularity not to be sanctioned. (Coles v. Kelsey, 2 Tex, R., 541, 543; Thomas v. Young, 5 Tex. R., 253, 255.)
This application to amend was made after announcement of “ready for trial.” There is no reason shown why the facts to be relied upon in the amendment were not first set up. We are not notified in what respect the party desired to amend. They ask to amend generally. The court inquires of the counsel if they have any defense to the merits of the cause, and they decline making any showing against the merits of the cause, and under the circumstances we think the court very properly refused to grant time to prepare any empty plea they might think proper to bring in.
The proceedings in this cause were marked with some irregularities, but with none sufficient to require a reversal of the judgment. But one of the defendants was served originally. They both appeared, however. Such is the necessary presumption from the use of the plural instead of the singular number throughout their answer; and the cause was then continued on affidavit of defendant, which would have been...
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