Crawford v. Davis, 2098.

• Decision Date: 07 February 1941
• Docket Number: No. 2098.,2098.
• Citation: 148 S.W.2d 905
• Parties: CRAWFORD v. DAVIS et al.
• Court: Texas Court of Appeals

148 S.W.2d 905

CRAWFORD v. DAVIS et al.

No. 2098.

Court of Civil Appeals of Texas. Eastland.

February 7, 1941.

Rehearing Denied February 28, 1941.

Appeal from District Court, Haskell County; Dennis P. Ratliff, Judge.

Action by J. M. Crawford against Tom Davis and others for damages for alleged negligent delay in procuring issuance and service of process in action on promissory note in which plaintiff was interested. From judgment of dismissal, plaintiff appeals.

Judgment affirmed.

Blanton & Blanton, of Albany, for appellant.

B. C. Chapman, of Haskell, E. V. Hardwick, of Stamford, and Ratliff & Ratliff, of Haskell, for appellees.

FUNDERBURK, Justice.

J. M. Crawford, as plaintiff, alleged that he was the owner of a note for the principal sum of $2,000 due by J. C. Buie, on January 1, 1930. This note had been in the hands of R. C. Couch who collected and credited certain payments thereon. In December, 1934, Crawford and Couch placed the note with Tom Davis, an attorney, with instructions to file suit upon the same before it became barred by limitation. In order to facilitate handling, at the attorney's suggestion, Crawford indorsed the note, without recourse, to said R. C. Couch. Davis, the attorney, filed suit in the District Court of Haskell County to recover the balance due on the note and to foreclose a lien securing the same, on December 29, 1933. The defendant in that suit (J. C. Buie) resided in Johnson County. Citation was not issued until August 7, 1934, and not served until September 10, 1934. In a trial of the case on November 8, 1937, judgment was rendered for the plaintiff R. C. Couch for $2,837.46 with foreclosure of the lien. Upon appeal the judgment of the trial court was, on March 9, 1939, reversed and a "take nothing judgment" rendered against the plaintiff, Couch, on the ground that, as a matter of law, the cause of action was barred by limitation. The bar of limitation was held to have resulted because of negligence as a matter of law in failing to have the defendant duly cited to answer.

This suit by said J. M. Crawford against said Tom Davis and R. C. Couch seeking recovery of damages by reason of the facts alleged as above stated was filed on August 22, 1939. The defendants, in addition to other defenses, each demurred generally to plaintiff's petition, and excepted specially on the ground that it affirmatively disclosed that the alleged cause of action was barred by the two-year statute of limitation, R.S. 1925, Art. 5526.

The court sustained the general demurrers and said special exceptions. Whereupon the plaintiff declining to amend, the suit was dismissed. From the judgment of dismissal the plaintiff has appealed.

The parties will be referred to as plaintiff and defendants, the same as in the trial court, or by name.

The judgment indicates that the court acted upon the general demurrers and special exceptions raising the issues of limitation all at the same time. The ordinary procedure, of course, would be for the court to act upon the general demurrer, and, unless it was overruled, questions arising upon special exceptions would not be reached. Plaintiff's pleading, we think, considered apart from the special exceptions was not subject to general demurrer. The effect, however, of sustaining the special exceptions would be the same as sustaining the general demurrer. In fact, after sustaining the special exceptions the pleading was subject to general demurrer. Stringer v. Robertson, Tex.Civ.App., 140 S.W. 502. The action of the court, as reflected by the record, is supported by all reasonable presumptions and is, therefore, we think, properly to be sustained upon the view that the court only sustained a general demurrer as a consequence of sustaining the special exceptions.

According to the allegations of his petition, defendant's alleged negligence, constituting the basis of the action, occurred not later than September 10, 1934—the date of the service of citation upon Buie. Suit was filed on August 22, 1939. Allegations in the petition refer to the date of March 9, 1939. Such allegations could not have been made except in a suit filed after that date. The question for decision is whether plaintiff's petition showed affirmatively that the cause of action was barred by limitation.

The wrong, charged to the defendants, was one giving rise to a cause of action from the time of its commission. "The general rule is that a right of action accrues whenever facts come into existence which give rise to a cause of action." 1 Tex.Jur. 632; Western Wool Commission Co. v. Hart, Tex.Sup., 20 S.W. 131; Steele v. Glenn, Tex.Civ.App., 57 S.W.2d 908. A cause of action based upon a consummated legal wrong accrues immediately regardless of whether or not the injured party has knowledge of the wrong. Houston Water-Works v. Kennedy, 70 Tex. 233, 8 S.W. 36; Steele v. Glenn, supra.

The cause of action was barred after two years from September 10, 1934; that is, on or about September 10, 1936, unless the averments of plaintiff's petition, taken as true, showed that the running of limitation was tolled from said time up to within two years prior to August 22, 1939. Plaintiff's petition alleged no facts to show a tolling of limitation. To toll the running of limitation the parties, being sui juris, it was necessary to show fraudulent concealment, or, at any rate, some matter of equitable estoppel against the defendants from asserting the bar of limitation. Steele v. Glenn, supra. The petition contains no allegations of such nature.

The only pleading of the plaintiff which could be contended as averring any facts designed to show that the running of limitation was tolled was his first amended supplemental petition. This pleading was, of course, incompetent to aid his first amended original petition as to defects rendering it subject to exceptions. "It may be stated as an invariable rule" says Judge Townes, "that defects in a pleading of any class should be cured by an amended pleading of that class, and not by a...