Chambers v. Shaw

23 Tex. 165 | Tex. | 1859

Wheeler, C. J.

There manifestly was no error in refusing to re-instate the former suit. If there was error in the dismissal of that suit, or the refusal to re-instate, at a former term, the remedy was by appeal, or writ of error, and not by a second application at a subsequent term, in the same court.

But there was no error. The evidence in support of the application gives us no reason to suppose that the dismission of the suit was caused by anything but the plaintiff’s own laches. Mo sufficient excuse is shown for the failure to prosecute, or to move in proper time to reinstate the cause.

That a former suit, dismissed for the want of prosecution, does not interrupt the running of the statute of limitations, unless the failure to prosecute has been satisfactorily accounted for, must be considered as settled by the case of Shields v. Boone, (22 Texas Rep. 193,) lately decided at Austin. There having been no interruption of the statute by the former suit, the plaintiff’s right of action was plainly barred at the time of instituting this suit.

There manifestly is no error in the judgment, and it is affirmed.

Judgment affirmed.