Turner v. Brown
| Decision Date | 01 January 1852 |
| Parties | TURNER v. BROWN. |
| Court | Texas Supreme Court |
Quere, whether the acknowledgment of the justice of a claim constitutes a cause of action, independent of the original promise upon which the statute would run subsequent to the filing of the original petition, and until the acknowledgment was introduced in pleading; or, in other words, whether the amendments setting up the acknowledgment are to be regarded as amendments of the original petition, or as the institution of suit on the acknowledgment, as the sole and independent cause of action.
Where the plaintiff amended by alleging an acknowledgment of the justice of the claim within four years before the institution of the suit, but more than four years before the filing of the amendment, it was held that he might amend a second time, by alleging the acknowledgment to have been made within four years before the filing of the first amendment, although more than four years before the second amendment; and that the petition, as amended, was good. (Note 67.)
Where an acknowledgment of the justice of the claim sued on was set up by way of amendment, to take the case out of the statute: Held, That it was not necessary to serve the defendant with notice thereof, he having been regularly cited in the first instance.
Appeal from Brazoria. On the 15th day of October, 1849, the appellant brought suit against the appellee, on a promissory note, due on the 2d day of December, 1840. At the Fall Term and on the 7th day of November, 1849, the plaintiff amended his petition, alleging that on or about the 21st day of October, 1845, the defendant, by his indorsement in writing signed by him, acknowledged the justice of the debt. Subsequently, at the same Term, the defendant answered by a general demurrer and a general denial. Afterwards, the plaintiff amended by averring that the note had been mislaid previous to the institution of the suit, wherefore it could not be produced upon the trial, but the plaintiff would prove its contents. At the Fall Term, 1850, and on the 12th day of December of that term, the plaintiff further amended his petition, alleging that the defendant by his written indorsement on the back of the note described in the original petition, signed by him on the 25th day of September, 1846, acknowledged the justice of the demand; a copy of which acknowledgment was appended to the petition, and was as follows:
“I owe the within amount, and it is a just and true claim. September 25th, 1846.
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¦(Signed)¦R. R. BROWN.” ¦
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The defendant excepted to the last amended petition, on the ground--
1st. That it set forth a new cause of action, which was barred by the statute of limitations previous to the filing of the amendment.
2d. That no citation was issued upon the amended petition.
The court sustained the exceptions to the original and amended petition, and dismissed the case.
J. B. Jones and P. McGreal, for appellant.
In dismissing the case the court doubtless acted on the supposition that the new promise constituted the sole cause of action; that suit was not brought upon it until the filing of the last amended petition; and that four years from its date having then elapsed, it was barred by the statute of limitations.
Whether the new promise constituted a cause of action independent of the original promise upon which the statute would run subsequent to the filing of the original petition, and until the new promise was introduced in pleading; or, in other words, whether the amendments setting up the new promise are to be...
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