Garvin v. St. Clair

17 Tex. 435

• Court: Texas Supreme Court
• Decided: July 1, 1856
• Status: Published

Opinion

Hemphill, Ch. J.

This suit was brought by the plaintiffs in error on a judgment rendered jin their favor against the defendant in error by the District Court of the United States for the Northern District of Mississippi in June, 1854, for the sum of two thousand one hundred ■end thirty-six dollars and twelve cents, together with the costs of suit. An exemplificaof the judgment was made a part of the petition. The defendant demurred, on the ground, 1st, of misdescription of the judgment; 2nd, that the action was barred by the statute of limitations.

The demurrer was sustained and the plaintiffs brought up the cause by writ of error.

There is nothing in either of the grounds of demurrer. The misdescription is presumed to have been in the date of the judgment, stated in the petition to have been the second of June, 1853, whereas it was on the seventh of June. This error was corrected by the exemplification, which was a part of the petition, and exhibited, doubtless, the true date. If it did not, the objection on the ground of variance, when the exemplification was offered in evidence might be taken, but it is no cause of exception that the date, as stated in the description, did not correspond precisely with the date shown by the copy of the judgment.

Not is there more force in the objection on the ground of limitation. The provision referred to is doubtless the fourth Section of the Act of June, 1845, (Hart. Dig. Art. 1628 and 2399.) This has been construed in the cases of Harper v. Nichol, 13 Tex. R. 151, and Clay v. Clay, Id. 195, and it was held that the Section had no reference to any judgments except those rendered anterior to its passage. This is conclusive of the point in this cause, and it is ordered that the judgment be reversed and the cause remanded for a new trial.

Reversed and remanded.