Case No. 2109 | Tex. | Nov 12, 1886
It has been determined by this court in several decisions that it is within the discretion of the district judge to allow a party to withdraw his announcement of readiness for trial for the purpose of filing an amendment, and that this discretion will not be revised upon appeal. Whitehead v. Forley, 28 Tex., 10; Obert v. Landa, 59 Tex., 475" court="Tex." date_filed="1883-05-25" href="https://app.midpage.ai/document/obert-v-landa-4894105?utm_source=webapp" opinion_id="4894105">59 Tex., 475; Parker v. Spencer, 61 Tex., 155" court="Tex." date_filed="1881-02-18" href="https://app.midpage.ai/document/parker-vspencer-4894341?utm_source=webapp" opinion_id="4894341">61 Tex., 155.
There was, therefore, no error in the district judge’s allowing the appellees that privilege in the present case. The original petition set up as cause of action a judgment recovered by the plaintiff against the defendants, which had not been paid. The amended petition set up precisely the same cause of action. In the former it was alleged that no execution had ever issued upon the judgment; in the latter that execution had been issued within a year after its rendition, but that about nine years had elapsed since the last one had issued. In either event the plaintiff was entitled to have the judgment revived; in the one case because it was dormant, in the other because it had lost its lien from want of diligence in the issuance of execution. Masterson v. Cundiff, 58 Tex., 472" court="Tex." date_filed="1883-01-30" href="https://app.midpage.ai/document/masterson-v-cundiff-4893954?utm_source=webapp" opinion_id="4893954">58 Tex., 472.
The unpaid judgment forming, as it did, a sufficient cause of action whether executions issued as alleged or not, the change in averments as to the issuance of executions, did not change the cause of action. The amended petition merely detailed more fully and accurately facts occurring after the judgment upon which the original petition was based had been rendered, and this did not change the nature of the suit so as to date its commencement from the filing of the amendment. Thouvenin v. Lea, 26 Tex., 612" court="Tex." date_filed="1863-07-01" href="https://app.midpage.ai/document/thouvenin-v-lea-4890039?utm_source=webapp" opinion_id="4890039">26 Tex., 612.
In the case cited the amendment set up an additional stipulation in
We think the court did not err in holding that the suit was commenced with the filing of the original petition, and in not sustaining the plea of the statute of limitations.
The judgment is affirmed.
Affirmed.
[Opinion delivered November 12, 1886.]