Irvine v. Corporation of Bastrop

32 Tex. 485

• Court: Texas Supreme Court
• Decided: July 1, 1870
• Status: Published

Opinion

Walker, J.

The plaintiffs in error insist upon two grounds for reversal:

1. The court overruled the demurrer to the amended petition, setting up a new cause of action.

2. Overruling the motion to dissolve the injunction.

In Williams v. Randon, 10 Tex., 74, the court say: “ An amendment may set up a new cause of action, provided that it does not prejudice the other party; but that all the costs be paid up to the time of making such amendment, and that the amendment shall not relate back to the time of the commencement of the suit. It seems that title acquired after suit brought, may be relied on, subject to the above restrictions.”

The correctness of this rule, and the necessity for it, are apparent ; and this court, deeming it matter of great practical importance that the rule should be enforced, even with strictness, will not suffer it to be disregarded, as it evidently was in this case. Bringing suits into court by installments, and serving every ■ necessity by some new title or cause of action, is a practice only to be tolerated in the absence of all correct system.

The dissolution of the injunction was a matter more in the discretion of the court.

But had the answer traversed all the material facts alleged, as matter within the knowledge of the defendants, the court should then have dissolved the injunction, leaving the cause to stand for trial on petition and answer. (Fulgham v. Chevallier, 10 Tex., 518.)

But on the grounds taken in the first exception, the judgment is reversed and cause remanded.

Reversed and remanded.