Erskine v. Wilson

• Decision Date: 01 January 1863
• Parties: MICHAEL ERSKINE v. THOMAS W. WILSON.
• Court: Texas Supreme Court

27 Tex. 117

MICHAEL ERSKINE

v.THOMAS W. WILSON.

Supreme Court of Texas.

1863.

Where there is nothing in the record to show that a demurrer was not acted upon in the court below, this court might well decline to notice the argument of the counsel in support of the proposition that the court erred in overruling the demurrer.

Where suit is instituted upon a note, and a new promise is pleaded by way of amendment, such new promise is a new cause of action, and the amendment setting up such new promise should be served on the defendant; but should the defendant appear and answer such an amendment, then it need not be served on him. The case of Morrison v. Walker, 22 Tex., 18, cited and approved.

NOTE.--McRee v. Brown, 45 Tex., 503.

To take the suit upon a new promise out of the operation of the statute of limitations, the plaintiff may rely upon the absence of the defendant from the state, and this rule is not changed because the defendant had answered to the suit upon the old cause of action, and was, therefore, in contemplation of law, in court from the time of his original answer.

The evidence in this case was discussed, and held not sufficient to constitute such a new promise as would sustain a new suit.

APPEAL from Guadalupe. Tried below before the Hon. A. W. Terrell.

This case was formerly reversed and remanded by this court, see Erskine v. Wilson, 20 Tex., 77, to which reference is made for a statement of the case and the facts adduced on the former trial. Three other trials were had, and judgments for plaintiff. On the last trial the same facts were introduced in evidence as on the trial in which the judgment was rendered that was reversed as above stated. The death of the payee of the note, and that the assignor was his heir and legal representative, were also in proof. The other facts are sufficiently disclosed in the opinion of the court rendered on this appeal.

Chandler, Turner & Thornton, for appellant.

Ireland, for appellee.

BELL, J.

There is nothing in the record to show that the demurrer filed on the 11th day of May, 1858, to the second amended petition of the plaintiff, was acted on by the court below, and we might properly decline to notice the argument of counsel in support of the proposition that the court below erred in overruling the said demurrer. But as we infer from the whole record that the court below did overrule the demurrer, as the question upon the demurrer, if left undecided, would arise upon another trial, we think proper to express the opinion that the court below did not err in overruling the demurrer to the second amended petition. It is well settled that in such cases as the present the new promise constitutes the cause of action. If the plaintiff had instituted his suit, based upon the new promise, at the same time that he filed his second amendment, it cannot be doubted that he might have relied upon the...