40 S.W. 323 | Tex. App. | 1897
On September 26, 1893, the Chicago Title and Trust Co., as receiver of the property of Chas. P. Kellogg Co., instituted suit in the District Court of Milam County against the appellee, Lewis, for certain goods, or the value thereof, which were alleged to have been obtained from the possession of Chas. P. Kellogg Co. by reason of the false and fraudulent statement by Lewis of his financial condition at the time the goods were purchased. The Chicago Title and Trust Co. sued as receiver by virtue of appointment made by courts in Chicago, Ill., where the Title and Trust Company was located.
After the institution of the suit, on October 17, 1894, the appellants, Chas. P. Kellogg Co., filed an amended original petition, in which they in effect set up substantially the same cause of action against the appellee, Lewis, and alleged that since the filing of the original petition by the receiver, the receiver had been discharged and the property re-delivered back to them.
The real question in the case is whether the cause of action was barred by the two years statutes of limitation at the time that this amended petition was filed.
The facts pleaded in both the original and the amended petitions show that the goods were obtained more than two years prior to the filing of the amended petition, and that the fraud was discovered more than two years prior to the time of filing the amendment.
The court below sustained demurrers to the petition upon the ground that the cause of action was barred.
In Moreau v. DuBellet, 27 Southwestern Reporter, 503, and Moseby v. Burrow,
If this is the correct rule — and we have no inclination to question it — the original petition filed by the receiver was unauthorized, and no right of action could be based upon it or kept alive in order that the appellants could base an amendment thereon.
There is no allegation in the original petition to the effect that the receiver sued for the use and benefit of the appellants, Kellogg Co.; but, upon the contrary, it is expressly stated that the receiver sued by *671 virtue of its authority as a receiver appointed by the courts under whose jurisdiction it was acting.
The right of the appellants so far as their cause of action is concerned dates only from the time at which they filed an amended petition; and as the facts pleaded in effect show that the fraud was discovered more than two years prior to the time this amendment was filed, the court below correctly held that their action was barred.
We find no error in the record, and the judgment below is affirmed.
Affirmed.
