36 Tex. 181 | Tex. | 1872
This was an action brought in the county of Jack to foreclose a vendor’s lien. In the original petition it is set forth that the residence of the defendant was to the plaintiff
On the day of trial, the defendant asked leave of the court to withdraw his pleas, general and special, to the merits of the action, which leave was granted; whereupon, further leave having been obtained, the defendant filed a plea in abatement, setting up that he was a resident of Parker county at the commencement of the suit, and could not, therefore, be sued in the county of Jack. A jury was called to try the issue thus presented, and,, after hearing evidence, returned their verdict in favor of the defendant. Upon this verdict the court dismissed the plaintiff’s action at his costs.
It is nowhere denied but that the land sought to be subjected to the vendor’s lien was situated in the county of Jack.
Under the act of May 18th, 1846, Oldham & White’s Digest, Article 401, this suit would have been improperly brought, as was decided in Coffee v. Haynes, 24 Texas, 190. But on the 10th of December, 1863, the act of 1846 was amended by inserting, in the tenth exception to the general rule that persons must be sued in the county of their residence, the words “ or “ lien,” and also the words “ or property subject to lien.” Under this amendment of the law, this action, being to enforce a vendor’s lien on lands situated in the county of Jack, was properly brought in that county.
The court erred in admitting a plea to the jurisdiction, after a plea in bar had been filed. The issue tendered and passed upon was totally immaterial, and all other defenses having been withdrawn, the plaintiff was entitled to a judgment and decree non obsixmte veredicto. But the plaintiff, it seems, did not move for a judgment, but asked for a hearing on the merits. If the motion had been made for judgment, notwithstanding the verdict in the District Court, and refused, we should enter such judgment in this court, and it is only upon the overruling of a motion in such cases, that we shall feel under obligation to
It is insisted by the appellee’s counsel that the appellant should have demurred to the plea in abatement, if he thought the issue presented immaterial. This might have been done. The more proper practice would have been by-motion to strike out the plea, as coming too late after plea to the merits. But the plaintiff lost nothing by failing to demur. The verdict did not cure the defect in the pleading. In Ryan v. Jackson, 11 Texas, 400, it was held by the court that an answer which sets up no legal defense, and presents no material issue to the jury, should be treated as a nullity. (See also Brewer v. West, 2 Texas, 376.) Verdicts only cure the informality of pleading. They leave all substantial legal defects open to be taken advantage of by motion in arrest of judgment, and it made no kind of difference whether the appellants saw proper to demur to the plea in abatement or not.
The motion for a new trial should have been sustained by the court; but this not being done, the motion in arrest of judgment should have been sustained, and it was error to dismiss the cause.
The judgment of the District Court is reversed, and the cause remanded.
Reversed and remanded.
