Davidson v. Gibson

2 Posey 331

Opinion

Opinion.— The exceptions taken by the plaintiff to the defendant’s answer were properly sustained by the court, and the appellant’s counsel, in his brief, does not present either authority or argument to support the sufficiency of the answer. But on the other hand neither of the grounds was valid on which the court refused to allow defendant to amend his answer. See Dewitt v. Jones, 17 Tex., 623; also, 4 Tex., 454; 10 Tex., 520. Substantial defects which would wholly defeat a recovery, or materially affect or modify a judgment, maybe cured by amendment, and even the character of the suit may be substantially changed. Plaintiff by amendment of tlie petition may supply omissions. Sayles’ PL, sec. 156; 10 Tex., 155; 18 Tex., 155; 28 Tex., 713. And the same indulgence will be allowed defendant. See 12 Tex., 413.

It is no impediment, ordinarily, to the right to amend, that the pleading excepted to has been put under oath. 20 Tex., 245; 10 Tex., 360.

A plea impeaching the consideration of a note under seal need not be under oath. 28 Tex., 219; 26 Tex., 338.

For the errors indicated the judgment is reversed and cause remanded.

Reversed ahd remakded.