Eden v. D. M. Osborne & Co.
| Decision Date | 26 September 1896 |
| Citation | 37 S.W. 182 |
| Parties | EDEN v. D. M. OSBORNE & CO. et al. |
| Court | Texas Court of Appeals |
Appeal from Tarrant county court; George W. Armstrong, Judge.
Action by B. F. Eden against D. M. Osborne & Co. and others. Action dismissed, and plaintiff appeals. Reversed.
J. B. Lewright, for appellant. Ross & Chapman, B. P. Ayers, and B. J. Houston, for appellees.
This suit arose in the county court in the year 1891, being an action against the constable and the plaintiff in execution for the value of several bales of hay claimed to have been exempt property. The value of the hay was alleged in an amount exceeding $200; and on the first trial, after an answer to the merits, a plea in abatement to the jurisdiction was interposed and sustained; but, because it had not been filed in the due order of pleading, that judgment, on appeal to this court, was reversed, and the cause remanded. 29 S. W. 414. Thereafter (October 17, 1895) the defendants below were permitted, on motion to that effect, over the objections of the plaintiff, to withdraw all previous pleadings, including answers to the merits filed after the reversal by this court, and to replead so as to present their plea in abatement in its due order. The plea in abatement so interposed was again sustained, and the suit dismissed for want of jurisdiction; and the appeal from that judgment is now before us for decision.
That it is ordinarily within the discretion of the court to permit an answer to be withdrawn for the purpose of filing a plea in abatement is well settled, but we feel constrained to hold that that discretion was not properly exercised in this instance. Such plea is dilatory in its nature, and for that reason must be promptly presented, and in its due order. No sufficient excuse was shown in the motion for not obtaining leave and presenting this plea in its due order, several years before this motion was made. To wait more than four years, until after the cause of action would be barred by limitation, if presented in the court of appropriate jurisdiction, the real amount being beneath the county court jurisdiction, and then seek to correct an error of pleading on the part of defendants when it was too late for the plaintiff to have a trial on the merits, would be manifestly unjust to the plaintiff. As the plea to the merits was a waiver of the plea to the jurisdiction filed out of its order, plaintiff had a right to rely upon that as a complete answer to the...
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... ... (Baker v. Union Stockyards Nat ... Bank, 63 Neb. 801, 93 Am. St. 484, 89 N.W. 269; ... Schauer v. Beitel, 92 Tex. 601, 50 S.W. 931; Eden v ... D. M. Osborne, 14 Tex. Civ. App. 314, 37 S.W. 182.) ... A ... distinction is drawn between the substitution of a competent ... ...
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...under the statute to urge the demurrer at the late day at which it was interposed and ruled upon by the trial court. Eden v. Osborne (Tex. Civ. App.) 37 S. W. 182; Watson v. Mirike (Tex. Civ. App.) 61 S. W. 540; Aldridge v. Webb & Hill, 92 Tex. 122, 46 S. W. 224; article 1269, Sayles' Ann. ......
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