Maxwell v. First Nat. Bank of Cisco

• Decision Date: 10 January 1894
• Citation: 24 S.W. 848
• Parties: MAXWELL v. FIRST NAT. BANK OF CISCO et al.
• Court: Texas Court of Appeals

24 S.W. 848

MAXWELL v.FIRST NAT. BANK OF CISCO et al.

Court of Civil Appeals of Texas.

January 10, 1894.

Appeal from district court, Eastland county; T. H. Conner, Judge.

Action by the First National Bank of Cisco against O. T. Maxwell and J. J. Martin on certain promissory notes.Judgment for plaintiff.Maxwell appeals.Reversed.

Davenport & Longino, for appellant.J. H. Calhoun, for appellees.

HEAD, J.

Since the decision of this case in the court below, our supreme court has overruled the case of Thompson v. Griffin, 69 Tex. 142, 6 S. W. 410, in so far as it was therein held that an appeal from a judgment rendered in the lower court did not affect its competency to sustain a plea of res adjudicata interposed in another suit pending the appeal.Railroad Co. v. Jackson, 85 Tex. 607, 22 S. W. 1030.The plea of res adjudicata interposed by appellees to the answer filed by appellant in this case was, therefore, improperly sustained, it clearly appearing therefrom that the judgment relied upon was then pending in the supreme court upon appeal with supersedeas bond.

Appellees also plead the pendency of the former suit in the supreme court in abatement of the matters set forth in appellant's answer, but this plea, if applicable here, was not called and disposed of before the main issue upon the merits, but seems to have been disregarded by instructing the jury to find for the plaintiff the amount of the notes with interest.It being what is denominated a "dilatory plea,"(Trawick v. Martin Brown Co., 74 Tex. 525, 12 S. W. 216,) was therefore waived, (Blum v. Strong, 71 Tex. 329, 6 S. W. 167.)It also would seem either to have been filed out of its due order, or not to have been disposed of at the first...