McKinney v. Stoneham

35 S.W.2d 450

• Court: Court of Appeals of Texas
• Decided: February 5, 1931
• Docket: No. 9517.
• Status: Published

Opinion

GRAVES, J.

Appellants bave filed in tbis court their brief in tbis cause in tbe form of a written memorandum, in which they in effect recite that the only question the appeal involves is whether or not the same parties to the same cause of action may bring a second suit thereon in the same court, where the court sustains a general demurrer to their first suit and they decline either to amend their pleadings or to appeal from the judgment dismissing the cause; they assert that such dismissal of the former suit is not a bar to another action upon the same cause, saying in that connection: “The dismission of the case, therefore, is the immediate consequence rather of the failure to amend, than of the judgment upon the demurrer; and whatever the form of the judgment, its effect, it is conceived, is the same.’ It operates a dismission of the suit merely and is not a bar to another suit for the same cause.”

On the contrary, we regard it as settled law in this state that a judgment sustaining a general demurrer is as final and conclusive as if rendered upon a hearing of the facts, and, if such judgment is not appealed from, the plaintiff is thereby precluded from a recovery in a second suit between the same parties in the same cause of action to which the demurrer has been sustained. Carpenter v. Landry, 45 Tex. Civ. App. 507, 101 S. W. 277, and authorities there cited.

Judgment of the trial court will therefore be affirmed.

Affirmed.