Cotulla v. Urbahn
| Citation | 126 S.W. 1108 |
| Parties | COTULLA v. URBAHN.<SMALL><SUP>†</SUP></SMALL> |
| Decision Date | 13 April 1910 |
| Court | Supreme Court of Texas |
Action by Albert Urbahn against Joseph Cotulla. A judgment for plaintiff was affirmed by the Court of Civil Appeals (126 S. W. 13), and defendant applies for a writ of error to that court. Refused.
A. Winslow, for applicant.
The note sued on had been due more than four years before the suit was brought, and therefore appeared from the original petition to be barred. When the defendant (plaintiff in error) invoked the statute of limitation by exception and plea, the plaintiff (defendant in error) by supplemental petition set up a new promise. The true cause of action was upon the new promise, and not upon the original note, according to a long line of decisions, and from this it follows that the purpose of further pleading on the part of plaintiff was to cure a defect in his petition, so as to make it show a good cause of action, which required an amendment of that petition, and not a supplemental petition. We therefore do not agree with the Court of Civil Appeals in the opinion that the course first taken by plaintiff was correct. The trial judge, however, took the same view that we do, sustaining exceptions to the supplemental petition, and plaintiff thereupon set up the new promise in an amended petition. We agree with both courts in holding that the fault in pleading was a mere irregularity, which did not prevent the declaring upon the new promise from having the effect of stopping limitation from the time of the filing of the supplemental petition.
Refused.
† Writ of error granted, on rehearing, by Supreme Court.
To continue reading
Request your trial
-
Starr v. Ferguson
...26 S.W. 483; Stein v. Hamman, 118 Tex. 16, 6 S.W.2d 352, 9 S.W.2d 1104; Elsby v. Luna, Tex.Com.App., 15 S.W.2d 604; Cotulla v. Urbahn, 104 Tex. 208, 216-218, 126 S.W. 1108, 135 S.W. 1159, 34 L.R.A.,N.S., 345, Ann.Cas.1914B, 217; First National Bank in Canyon v. Gamble, 134 Tex. 112, 116, 13......
-
Schultze v. Schultze
...Stein v. Hamman, et al., 118 Tex. 16, 6 S.W.2d 352, 9 S.W.2d 1104; Elsby v. Luna, Tex.Com. App., 15 S.W.2d 604; Cotulla v. Urbahn, 104 Tex. 208, 216-218, 126 S.W. 1108, 135 S.W. 1159, 34 L.R.A.,N.S., 345, Ann.Cas. 1914B, 217; Cochran v. J. B. Coe Lumber Co., Tex.Civ.App., 82 S.W.2d 684; C. ......
-
Martindale Mortg. Co. v. Crow
...In case an issue was raised by the evidence as to what obligation it applied, that question might have been for the jury. Cotulla v. Urbahn, 104 Tex. 208, 126 S.W. 1108, 135 S.W. 1159, 34 L.R.A.,N.S., 345, Ann.Cas.1914B, The trial court in the interpretation of the instrument was under the ......
-
First Nat. Bank in Canyon v. Gamble
...Stein v. Hamman, 118 Tex. 16, 6 S.W.2d 352, 9 S.W.2d 1104; Howard & Hume v. Windom, 86 Tex. 560, 566, 26 S.W. 483; Cotulla v. Urbahn, 104 Tex. 208, 216-218, 126 S.W. 1108, 135 S.W. 1159, 34 L. R.A.,N.S., 345, Ann.Cas.1914B, 217; Elsby v. Luna, Tex.Com.App., 15 S.W.2d 604; Beeler v. Harbour,......