Kelso v. Adams

2 Posey 374 | Tex. Comm'n App. | 1882

Opinion.— Our opinion is that the court erred in overruling appellant’s exceptions to the plea to the jurisdiction. Appellee had been duly served with process, and we think that his consent to a general continuance, and especially his agreement to refer the matter in dispute to arbitration, was a submission to the jurisdiction of the court. Our statute requires pleadings to be filed in the due order of pleading. By the old order of pleadings a plea to the jurisdiction could not be filed after a general imparlance. 3 Bl. Com., 301. See, also, Gould’s Pleadings. Where the parties to a cause consent to a continuance, they by that act agree to try the cause before that court, but not at that term; otherwise a defendant might have a case continued until the plaintiff’s cause of action was barred by limitation, and then by interposing mere dilatory pleas dismiss the suit. Appellant also complains that the court imposed upon him the burden of disproving the special plea of appellee. The rule is the reverse. See Robertson v. Ephriam, 18 Tex., 118; also H. & T. C. R. R. Co. v. Gram, 50 Tex., 181, 44 Tex., 304, and Gould’s Pleadings, ch. 3, secs. 57, 58.

We conclude that the judgment should be reversed and cause remanded.

Reversed and remanded.