24 Tex. 289 | Tex. | 1859
The question in this ease, is, whether or not, the plea of reconvention was sufficient to authorize the admission of any evidence offered in support of it. This is a mode of testing the sufficiency of pleading, which must be entertained with great caution; for it is adopted at a stage of the trial, when all opportunity of amending the pleading, if defective, is lost. The substantial rights of a party may thereby be lost forever, by the unskilfulness, or even inadvertence of the pleader. A party announces himself ready for trial, upon a plea which seeks to present a meritorious defence. No objection has been taken to it, and he is apprised for the first time, that its sufficiency is contested, by an objection to his evidence. The unskilful or
On the other hand, the party who seeks such an advantage, by not excepting to the plea, but by objecting to the admission of the evidence under it, must expect that the plea will be taken and understood in its full force against him. He has waived the right of making special exceptions to it. If it be good on general demurrer, and will sustain a verdict and judgment rendered upon it, his objection cannot prevail.
The plea states, that a writ of attachment was wrongfully sued out by plaintiff; that it was levied upon a large amount of property, consisting mainly of horses, engaged in carrying the mail, and that by their seizure, he had incurred fines, imposed by the United States government for failures to carry the mail, and that otherwise he has been greatly troubled, and damaged in the sum of $10,000, which he pleads in reconvention.'
If these facts be true, as stated, the defendant had a cause of action. They are stated generally, and had the plaintiff specially excepted to that mode of statement, the plea must have been held bad.
It is contended, that this plea should have negatived the allegations of the affidavit, made by plaintiff, to procure the attachment, from which the “legal conclusion ” would follow, that the writ had been wrongfully sued out, and not having done so, it was bad. Under our system of pleading, great liberality has uniformly been indulged in favor of pleading, where no special exceptions have been made. General statements of fact, and legal conclusions, constituting parts of a plea, have not been held to vitiate it upon general demurrer. This has long been the ruling of this court, when the question has been directly presented for adjudication. The admissibility of evidence under such pleading, was maintained in the case of Stiles
Judgment reversed and remanded.
