Dyo v. Winningham

• Decision Date: 19 June 1930
• Docket Number: No. 2431.,2431.
• Citation: 31 S.W.2d 1093
• Parties: DYO et al. v. WINNINGHAM.
• Court: Texas Court of Appeals

Page 1093

31 S.W.2d 1093

DYO et al. v. WINNINGHAM.

No. 2431.

Court of Civil Appeals of Texas. El Paso.

June 19, 1930.

Rehearing Denied July 24, 1930.

Order Denying Rehearing Set Aside August 8, 1930.

Leave Granted to File Amended Motion for Rehearing and Original and Amended Motions for Rehearing Overruled September 22, 1930.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

On motion for rehearing.

Motion overruled.

For former opinion, see 30 S.W.(2d) 381.

Davis, Tittman, Roche & Miranda, of El Paso, for appellants.

M. M. Winningham and Knollenberg & Cameron, all of El Paso, for appellee.

PELPHREY, C. J.

A previous motion for rehearing was overruled in this cause, but later such order was set aside and appellee granted leave to file an amended motion, in which, as a further ground, appellee contends that we committed error in reversing and rendering judgment as to appellants North Mexico Mining Company and H. Kishi, the plea of failure of consideration not having been verified by them or on their behalf.

The answer filed by appellants was verified as follows:

"The State of Texas, County of El Paso.

"Before me, the undersigned authority, on this day personally appeared Tsutomu Dyo, one of the defendants in the above styled and numbered cause, who after being by me duly sworn, on oath, says that the facts set forth in the foregoing special plea are, within his knowledge, true and correct.

                                            "Tsutomu Dyo
                

"Sworn and subscribed to by Tsutomu Dyo, one of the defendants in said cause, this 15th day of October, A. D. 1929. W. C. Roche,

                  "Notary Public in and for El Paso County
                      Texas
                  "[Not'l Seal.]"
                

Appellee now contends that such verification was insufficient to support the plea as to the appellants North Mexico Mining Company and H. Kishi, and that we were in error in reversing the judgment of the trial court in so far as it applied to such appellants.

The answer which was verified by Dyo appears from the transcript to have been a joint answer, and under some of the holdings in this state was sufficient as to all of the defendants, Queen Ins. Co. et al. v. Keller et al. (Tex. Civ. App.) 186 S. W. 359; Jones et al. v. Austin, 6 Tex. Civ. App. 505, 26 S. W. 144; but, conceding the correctness of appellee's contention as to the sufficiency of the pleading to raise the question of failure of consideration as to Kishi and the North Mexico Mining Company, it seems to be well settled that appellee, by failing to except to the pleading on account of such defect, if defect it was, and by failing to object to the introduction of evidence on that phase of the case, has waived such defect and cannot now complain, Williams v. Bailes, 9 Tex. 63; Gulf, C. & S. F. Railway Co. v. Jackson & Edwards (Tex. Civ. App.) 86 S. W. 47; St. Louis, S. F. &. T. Railway Co. v. Wall (Tex....