| Tex. | Jul 1, 1858
The object of the plea in abatement, was to enforce the legal right of the defendant, under the statute which requires that the petition shall state “ the names of the “parties and their residence,” &c. (Hart. Dig. Art. 671.) The truth of the plea having been found by the verdict of the jury to whom it was submitted, the court for the purpose of securing the object, thus contemplated, made a peremptory order, that the plaintiff “ have leave to amend and plead over at once, and unless the same be done, that his said suit be dismissed.” By this' order, the court indicated the opinion, that it was proper to give the defendant the benefit of his right (to have the plaintiff’s true residence stated) by forcing an amendment of the petition in this suit, after such a verdict, finding the true residence, as well as by dismissing this petition and leaving the party at liberty to file another. It does not appear that defendant made any objection to such alternative thus presented,
Such is the state of the record as presented to us, whatever may have been the facts as they transpired at the time of trial.
We do not now say that the court should, or should not, have dismissed the cause, upon the verdict of the jury, on the plea in abatement, in favor of the defendant; for that is a point in the case we have not determined. The defendant could certainly waive his right to have the petition dismissed, (if such right he had,) and permit the petition to be corrected by amendment, notwithstanding.the verdict in his favor. So far as his interest was concerned, it was merely a question of time and cost, whether he should so waive it. If, then, it bo admitted, that ho had the right to have the suit dismissed, the action of the court must have been predicated, either upon his supposed willingness to waive it, or upon the judge’s opinion, that he had no such right. In either event, it was the duty of the defendant tehave spread upon the record, by exception, motion, or otherwise, his objection to the direction given to the case by the' court, in such way as to have caused a direct decision upon the-question, of what was the legal effect of the verdict. This, being a matter dilatory in its character, and not going to the-foundation of the action on the merits, the right of the party
Judgment affirmed.