Lewis v. Davidson

51 Tex. 251

• Court: Texas Supreme Court
• Decided: July 1, 1879
• Status: Published

Opinion

Bonner, Associate Justice.

As there is no statement of facts in this case, the presumption must be indulged, in support of the judgment below in favor of W. L. Davidson, executor, that the evidence was sufficient to sustain the allegations in his pleadings; and the plaintiff in error is not entitled to a reversal, except for such fundamental errors of law, if any, as may be apparent of record.

The action of the court sustaining the exceptions of the plaintiff" to the plea in abatement of the defendant Charles Lewis, is assigned as error. This plea set up that the court had no jurisdiction of the person of this defendant after the suit had been dismissed as to his co-defendant Austin, he residing in a different county from that of his said co-defendant, in which the suit was brought.

It is a sufficient answer to this objection, that several terms of the court had passed; that the case had been tried in the District Court and reversed on error in the Supreme Court; and that defendant Lewis had long before pleaded to the merits.

If the privilege to have been sued in the county of his residence had not thus been waived by the defendant, yet the suit was properly brought in the county of Harris in the first instance, as the co-defendant Austin then resided there; and the fact that he subsequently died, and the cause was dismissed as to him, would not divest the previously-acquired jurisdiction over the other defendant, any more than a removal from the county would have done. To hold otherwise, and to require in such cases that a new suit should be instituted in the county of the residence of the remaining defendant, would frequently result in serious injury to the plaintiff, as his claim, without any fault on his part, might have become barred by the statute of limitations.

It is further assigned, that the court erred in overruling the defendant’s demurrers to the plaintiff’s pleadings.

This question as to the general merits of the cause of action was res adjudicaia, as it had been held good on demurrer by the former decision of this court in this very case. (Lewis v. Davidson, 39 Tex., 660; Meyers v. Dittmar, 47 Tex., 373.)

To the last amended petition, tiled December 7, 1869, the defendant by special demurrer set up the statute of limitations of two years. At that time the Constitution of 1869 had not been adopted, which suspended the statute of limitations from January 28, 1861, to March 30, 1870. (Const. 1869, art. 12, sec. 43.)

This was in force, however, at the date of the trial below, from which this writ of error is prosecuted.

It is the settled law of this court, that the statute of limitations so far pertains to the remedy as not to confer such vested right as would prohibit by the organic law an extension of the time in which suit may be instituted. (Bender v. Crawford, 33 Tex., 745; Bentinck v. Franklin, 38 Tex., 458 Wood v. Welder, 42 Tex., 409.)

Even had the demurrer been well taken at the time, under this subsequent law pertaining to the remedy, in force at the-trial, it ceased to be available. (Railroad Co. v. Graves, 50 Tex., 181.)

There being no error of law apparent upon the record, the.judgment below is affirmed.

Affirmed..