Frankenstein v. Acme Inv. Co.

• Citation: 87 S.W.2d 744
• Decision Date: 25 October 1935
• Docket Number: No. 1499.,1499.
• Parties: FRANKENSTEIN v. ACME INV. CO. et al.
• Court: Texas Court of Appeals

87 S.W.2d 744

FRANKENSTEIN v. ACME INV. CO. et al.

No. 1499.

Court of Civil Appeals of Texas. Eastland.

October 25, 1935.

Rehearing Denied November 22, 1935.

Appeal from District Court, Dallas County; Towne Young, Judge.

Suit by A. J. Frankenstein against the Acme Investment Company and others. From a judgment dismissing plaintiff's suit, plaintiff appeals.

Affirmed.

Wm. Andress, Jr., of Dallas, for appellant.

R. T. Bailey, of Dallas, for appellees.

GRISSOM, Justice.

The appellant, A. J. Frankenstein, sued the appellees, Acme Investment Company and others, for a malicious conversion of his automobile, for damages to appellant's nervous system, for humiliation, loss of reputation and credit, and exemplary damages. After the filing of appellant's third amended original petition, the appellee Acme Investment Company filed its answer, consisting of a general demurrer and general denial. Thereafter, it filed its second amended answer to said pleading of appellant, which answer contained numerous exceptions to appellant's said petition. Many of these special exceptions were sustained by the trial court, striking out a large part of the appellant's cause of action. The appellant contended that the exceptions should not be considered by the trial court because they had been waived by the prior filing of an answer to the merits, and were, therefore, not filed in due order of pleading. After the sustaining of the exceptions appellant refused to amend and the court dismissed the case, because, after the portions excepted to had been stricken from the petition, the controversy was less than $500 in amount and was without the jurisdiction of the district court. Appellant excepted to the action of the court and gave notice of appeal, and is now properly before this court.

The case is presented here by appellant's one assignment of error; that "the court erred in sustaining special exceptions filed subsequent to the filing of a general denial, for the reason that such special exceptions were filed out of the due order of pleadings, and were, therefore, waived and could not be considered." It is unquestionably the general rule that a defendant by first filing an answer to the merits of plaintiff's petition waives the right to thereafter present special exceptions to such petition. R.S. 1925, arts. 2006 and 2012; Rules of the District Court, Rules 6 and 7, 142 S.W. XVII; Camden Fire Ins. Ass'n v. Clark (Tex.Civ.App.) 69 S.W.(2d) 463; Drake v. Brander, 8 Tex. 351; Towner v. Sayre, 4 Tex. 28; Smoot's Texas Court Rules, 357, 360 and 362; 33 Tex.Jur. p. 525 et seq.

There is a well-established exception to the general rule above stated, and that is, that exceptions which go to the merits and, foundation of the action may be taken after answer to the merits.

"The petition was framed with a double aspect: asserting a title to the property absolutely, under the contract as a conditional sale discharged of its conditions; and in the alternative, as a mortgage. The recovery was upon the former aspect of the case. This, in the view we have taken, was error. But the plaintiff was entitled to maintain his action, in the other aspect of the case, for the foreclosure of the mortgage; and under the prayer for general relief, the appropriate relief might have been...