189 S.W. 965 | Tex. App. | 1916
T. J. Voyles, the appellee, brought suit in the county court of Wheeler county, on the 29th day of November, 1915, upon a promissory note given by the defendant, P. L. Braxton, appellant, of date January 1, 1911, for $372, due November 1, 1911, bearing 10 per cent. interest per annum from date, and the 10 per cent. attorney's fee clause. This suit was returnable to the November term, which convened on the fourth Monday of November, 1915, being the 23d day of the month. On the first day of the term the defendant filed his original answer, in which he admitted plaintiff's cause of action as alleged, expressly admitting the execution of the note sued on, in the manner and form as alleged in plaintiff's petition, but pleaded a set-off or counterclaim for the gathering of a crop of cotton by him for the plaintiff. The plaintiff excepted to the answer as to the counterclaim because of its indefiniteness and uncertainty.
The trial court sustained the exception, and the defendant took leave to amend. It is properly inferred that the defendant did amend and deliver the amendment to the attorney for plaintiff, and, owing to this matter so pleaded, was forced to continue in order to take the deposition of the plaintiff, who resided in Parker county, Tex. The case was continued until the February term, 1916, of the county court, which convened on the 28th day of the month. On the first day of the term it appears that the defendant demanded a jury, which necessitated the cause to await its turn as a jury case; that it was regularly reached, it appears, on the 7th day of March thereafter, and called for trial, when it was ascertained that on the 6th day of March the defendant had filed its first amended original answer, a plea of non est factum. This plea was not sworn to until the 7th day of March, the day the case was called for trial. Plaintiff then filed his motion to strike out the plea of non est factum, which, in fact, was the only answer then filed. The motion is as follows:
"Comes now the plaintiff and moves the court to strike out the defendant's plea of non est factum because the said plea is filed too late, in this: That this suit was filed on the 29th day of October, 1915, and the defendant duly cited to the November term, 1915, of this court; that the defendant filed his original answer at that term; that this cause was continued at said term, and defendant took leave to file its first amended answer, but after the adjournment of said November term, 1915, the defendant delivered to plaintiff's attorney his said first amended answer and plaintiff proceeded to take the deposition of plaintiff; that the court convened on the 28th day of February, 1916, and on the call of the docket on the first day of the term, no further pleading having been filed by defendant, he had this cause placed on the jury docket; that not until the 6th day of March, 1916, after this court had adjourned for the day, was this plea of non est factum filed and plaintiff had no knowledge of the filing of this plea until this cause was called for trial on the 7th day of March; that plaintiff is surpised by the filing of said plea, and would not be able to go to trial thereon at this term. Whereupon plaintiff moves to strike out this plea."
The court sustained this motion, and in the judgment recites that he heard both parties by their attorneys on the motion and duly considered the same. After striking out this plea, the court proceeded to hear the case and render judgment, from which appeal is prosecuted to this court.
The action of the court in striking out this amended answer is assigned as error on the ground that the court had no power to strike out the amendment, but that he was entitled, as a matter of right, to file the answer, and the court should have only continued the case and charged the continuance and the costs thereof to the defendant.
Substantially the same question is presented by the first and third assignments, which are considered together. Article
Assignment No. 2 complains at the action of the court in overruling its motion to postpone or continue. Without discussing this assignment, we think the reasons above given are sufficient to answer the assignment, and it will be overruled. *968
The fourth assignment urges that the court was in error in admitting the note sued on in evidence because there was a variance in its date and the date of payment from the allegations of the petition. The petition alleges the date of its execution as January 1, 1911, and its maturity November 1, 1911. The note offered in evidence and admitted, according to the bill of exceptions, is dated January 1, "19011", and matures November 1, "19011." The trial court doubtless applied practical everyday knowledge and observation in ascertaining the dates. The original note was before him, as it is with us. The note shows it is on a printed form, "190" is printed, "11" is written after the cipher, and instead of erasing the "0" it was left as printed. This is so manifestly a clerical error that any amount of pleading and proof to that effect would not more clearly demonstrate the error than the face of the note alone evidences. It was evidently executed January 1, 1911, and matured November 1, 1911, as alleged. There could have been no such variance as would operate as a surprise to the appellant.
The case will be affirmed.