5 S.W.2d 1001 | Tex. App. | 1928
The opinion of this court on a former appeal of this case, reported in 279 S. W. 906, is referred to for a statement of the nature of this litigation. After the case was remanded in accordance with that opinion, appellant filed his first amended, and later his second amended, original petition. James Shaw, banking commissioner of Texas, was substituted as plaintiff. In their third amended original answer appellees demurred generally to appellant’s amended petition, and excepted specially to a portion of paragraph 5 thereof, on the ground that it set up, for the first time, a cause of action then barred by the statute of limitation. The judgment discloses that the special exception was sustained; that plaintiff declined to amend; that thereupon the court considered and sustained the general demurrer to said petition; that plaintiff again declined to amend; whereupon the case was dismissed from the docket. Exceptions were taken and notice of appeal to this court given.
The court erred in sustaining the special exception. In passing upon a demurrer or exception to a pleading, nothing can he looked to outside the pleading itself. Unless the defect in a pleading appears upon the face thereof, it is not subject to a demurrer or exception. A demurrer of this nature should never be sustained except in those cases, if there be any, where the petition itself discloses not only the dates of the filing of the superseded petitions, but also the contents thereof, so that the court, by examining the petition excepted to, could determine that a new cause of action had been pleaded for the first time by the amendment. It appears that the court must have taken into consideration the abandoned original and the first amended original petitions, together with the dates of the file marks thereof. This was not proper. In order for abandoned pleadings to be considered by the trial court, or this court, they must be introduced in evidence. They have no proper place in the transcript. A demurrer which depends upon evidence for its support is not, in fact, a demurrer. There are many cases deciding this exact question, of which the following are illustrative: Lewis v. Alexander, 51 Tex. 578; Grounds v. Sloan, 73 Tex. 662, 11 S. W. 898; Kalteyer v. Wipff (Tex. Civ. App.) 49 S. W. 1055; Newson v. Sharman (Tex. Civ. App.) 119 S. W. 913; Oswald v. Giles (Tex. Civ. App.) 178 S. W. 679; Pyle v. Park (Tex. Civ. App.) 196 S. W. 246; Arbaugh v. Robinson (Tex. Civ. App.) 286 S. W. 339; Orndorff v. Austin (Tex. Civ. App.) 294 S. W. 681.
A general demurrer appears to have been sustained by the trial court to the remaining portions of the petition, after paragraph 5 had been stricken therefrom by the court. We do not think the court is authorized to sustain a general demurrer to a portion of the petition, but in passing on a general demurrer the whole must be considered.
But it is insisted by appellees that the amended petition as a whole was subject to a general demurrer in that it failed to allege that appellant had any title to or interest in the converted property. This question is not free from difficulties. The pleading is not carefully drawn. Briefly, it alleges that the appellees O. E. Delaney et al. instituted a suit in the district court of Stephens county against George S. Homan, and caused a writ of attachment to be sued out therein and placed in the hands of appellee Head, as sheriff of Stephens county, with instructions to levy upon certain drilling tools and equipment of said Homan; that in pursuance of such instructions, the said Head, as sheriff, executed said writ by-levying upon certain personal property belonging to the said Homan, which is particularly described in the petition. It alleges that the appellees Delaney et al. purchased said property at said sale, and converted same to their own use and benefit, moving it beyond the jurisdiction of the court and changing its identity, so that it cannot now be identified, “and have deprived this plaintiff of the security for his debt.” It then alleges that the said George S. Homan, prior to said attachment, executed and delivered to a bank of which appellant was then in charge,
“That at the time of the issuance of the said writ of attachment, as above alleged, the defendants O. B. Delaney, Mike Scott, W. J. Cummings, and J. J. Champion had notice of the pri- or mortgage lien of plaintiff and knew that plaintiff was asserting a lien upon said property, or could have known such fact by the use of reasonable diligence; that the defendant L. D. Head, at the time of the levy and sale of said goods as aforesaid, knew, or could have kfaown by the use of reasonable diligence, that plaintiff had a mortgage lien upon said property; that the.attachment of said property as aforesaid is a wrongful conversion thereof, and by reason thereof this plaintiff has been deprived of his lien upon said property.”
Nowhere in the petition is the allegation made that appellant’s mortgage lieu covered the property alleged to have been converted. But we have concluded that, by indulging every reasonable intendment arising upon the face of the pleading in favor of the sufficiency thereof, the pleading was not subject to a general demurrer. Hule No. 17 for the District and county courts provides;
“General exceptions shall point out the particular instrument in the pleading, to wit: The original petition or answer, or the respective supplements to either; and in passing upon such general exception every reasonable intendment arising upon the pleading excepted to shall be indulged in favor of its sufficiency.”
This rule has been rather liberally construed, as is indicated by the following decisions: City of Austin v. Schlegel (Tex. Com. App.) 257 S. W. 238; Gibbens v. Bourland (Tex. Civ. App.) 145 S. W. 274; Hoechten v. Standard Home Co. (Tex. Civ. App.) 157 S. W. 1191; Hotel Dieu v. Armendariz (Tex. Civ. App.) 167 S. W. 181; Bolt et al. v. State Sav. Bank of Manchester, Iowa (Tex. Civ. App.) 179 S. W. 1119; Sovereign Camp. W. O. W. v. Piper (Tex. Civ. App.) 222 S. W. 649; Landrum v. Turney (Tex. Civ. App.) 239 S. W. 366.
We have concluded that the same liberal construction will sustain the petition in this case as against a general- demurrer.
The above questions are the only ones presented by the record fgr our determination, and dispose of the appeal. But since the case must be again tried, and the answer of appellees contains a plea of limitation in bar of appellant’s suit, we think it proper to indicate to the learned trial judge that we do not believe such a new cause of action was alleged by the amended petition as that it was barred by the statute of limitation. We do not think it necessary to enter into a discussion of this question since it is not properly before this court, and since we are not authorized to 'consider these abandoned pleadings appearing in the transcript; but a study of the case of Reclamation Co. v. Simmons, 293 S. W. 194 (error refused), and the authorities therein cited, will indicate the view of this court with reference to this question.
For the errors indicated, the judgment of the trial court is reversed and the cause remanded.
