Governor of Texas v. Burnett

| Tex. | Jul 1, 1863

Wheeler, C. J.

This suit was instituted in 1847, to recover of the .appellee .the taxes collected by him on the assessment of 1845. The amended petition, filed in 1859, seeks a recovery upon the assessment of 1844. We think it can not be doubted, that the amended petition sets up a new and distinct cause of action from that set up in the original petition. And more than ten years having elapsed from the accrual of the cause of action, according to the decision of this court in the case of The Governor v. Al bright, (21 T. R., 753,) the cause of action was barred at the time of filing the amended petition. Repeated, decisions of this court have settled, that where an amendment sets up a new cause of action, it is subject to all defences which might have been made if the suit had been instituted at the time the amendment was filed. And the statute of limitations has been successfully pleaded to a new cause of action thus set up by amendment. (Williams v. Randon, 10 Tex. R., 74.)

The filing of the comptroller’s certificate did not aid the original petition, because not referred to and made a part of it. It may be true that both the original and amended petition refer to the same official bond. But that is not the cause of action. The cause of action is the failure of the defendant to pay over the money; and the original petition charges that the failure was to pay the money collected upon the assessment for one yéar; while the amendment avers the failure to pay upon the assessment for another year. The cause of action surely is not the same. If it was, the same evidence would support it, and there would have been no necessity for an amendment. The same view was taken of this question in Bell v. McDonald, (9 Tex., R., 381.)

We are of opinion that the court did not err in ruling that the cause of action set up in the amended petition was barred by the statute of limitation. The judgment is affirmed.

Judgment affirmed.

Moore, J., did not sit in this case.