Maher v. Gonzalez
| Decision Date | 03 June 1964 |
| Docket Number | No. 14265,14265 |
| Citation | 380 S.W.2d 764 |
| Parties | Francis P. MAHER, Trustee, Appellant, v. Enrique GONZALEZ, Appellee. |
| Court | Texas Court of Appeals |
William C. Wright, John E. Fitzgibbon, Laredo, for appellant.
Hall, Hall & Juarez, Philip A. Kazen, Abraham Kazen, Jr., Laredo, for appellee.
This suit was filed by Francis P. Maher, Trustee of the Estate of the Bank of Zapata, Uninc., which was adjudicated bankrupt on August 14, 1961, to recover from Enrique Gonzalez the sum of $5,881.03, being principal, interest and attorney's fees due on five notes executed by appellee to the Bank. The trial court sustained appellee's special exception that all five notes were barred by the four-year statute of limitation, and dismissed the suit.
Appellant's petition affirmatively shows that each of the notes sued on accured more than four years prior to the filing of the petition in bankruptcy. Appellee excepted to this petition for this reason and also affirmatively pleaded the four-year statute of limitation. There is no allegation which would toll the statute and appellant declined to amend his petition.
Under this record the trial court properly sustained the exception and dismissed the suit at appellant's cost. It is well settled that the statute of limitation may be arised by apecial exception when the pleading affirmatively alleges facts which demonstrate that the suit is barred. Mueller v. Banks, Tex.Civ.App., 317 S.W.2d 254; Armstrong v. Snapp, Tex.Civ.App., 186 S.W.2d 380; 37 Tex.Jur.2d, Limitation of Actions, Sec. 197.
Appellee also urged in the trial court, that since the petition showed that the notes were barred by limitation, the Trustee did not have authority under Title 11, Sec. 29, sub. e. U.S.C.A., to bring said cause of action on behalf of the bankrupt estate. This section provides in part: 'A receiver or trustee may, * * * institute proceedings in behalf of the estate upon any claim against which the period of limitation fixed by Federal or State law had not expired at the time of the filing of the petition in bankruptcy.'
It is our opinion that this provision does not affect the authority of the trustee to bring the suit, although the claim as alleged may be barred on its face under the Texas four-year statute of limitation. It has been held that the proper interpretation to be given this section of the Bankruptcy Act is that the State statutes of limitation must be applied as interpreted by the State courts. Austrian v. Williams, 2 Cir., 198 F.2d 697; Banister v. Solomon, 2 Cir., 126 F.2d 740; Remington on Bankruptcy, Sec. 2347.
The Texas statutes of limitation are special defenses which must be pleaded and, if not affirmatively pleaded, they may be waived. Rule 94, Texas Rules...
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Bantuelle v. Williams
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...Defendant did not affirmatively plead the statute of limitations and therefore such defense is not available to the City. Maher v. Gonzalez, 380 S.W.2d 764 (Tex.Civ.App., San Antonio, 1964, no writ This point is sustained but does not require a reversal of the case because the contract is u......
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Howle v. Howle, 302
...of whether or not the trial court gives the correct legal reason for its judgment or whether or not any reason at all is given. Maher v. Gonzalez, 380 S.W.2d 764 (Tex.Civ.App., San Antonio, 1964, n.w.h.); Holland v. Gibbs, 388 S.W.2d 295, 300 (Tex.Civ.App., Austin, 1965, writ ref., n.r.e.);......
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