Gildart v. Grumbles

22 Tex. 15 | Tex. | 1858

Roberts, J.

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, by moving for a 'direct judgment on the verdict, or by filing exceptions to tbe action of the court, in permitting an amendment after verdict. Nor does it appear that the defendant was taken by surprise, or thrown off his guard, or otherwise injured, by the action of the court in proceeding to trial; but he again excepted to the petition, as amended, and upon his exception being overruled, announced himself “ ready for trial “ on the merits.” The record does not exhibit any objection to the course pursued by the court in enforcing an obedience to the statutory direction, intended for the defendant’s benefit, until after the trial of the cause upon its merits. Then, for the first time, an objection is made to the ruling of the court, in not rendering a judgment upon the verdict on the plea in abatement, by a motion for a new trial, assigning this as one of the-grounds.

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 must be presumed to have been waived, unless it had been objected to in some way, and that objection placed on the record at the proper time. (Pool v. Picket, 8 Tex. Rep. 122; Williams v. Baile, 9 Tex. Rep. 61; Cox v. Giddings, 9 Tex. Rep. 44; Howard v. North, 5 Tex. Rep. 290 ; De Witt v. Miller, 9 Tex. Rep. 239.)

Judgment affirmed.