Cotulla v. Urbahn

• Decision Date: 13 April 1910
• Citation: Cotulla v. Urbahn, 126 S.W. 1108 (Tex. 1910)
• Parties: COTULLA v. URBAHN.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Supreme Court

126 S.W. 1108

COTULLA v.URBAHN.^†

Supreme Court of Texas.

April 13, 1910.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

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.

WILLIAMS, J.

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...