140 S.W. 474 | Tex. App. | 1911
In this case appellee has filed a motion to perfect the record by requiring the county clerk to send to this court the original answer of appellant. The case was tried on the first amended original answer of appellant, which became a substitute for the original answer. Rule 13 (67 S.W. xxi) for the government of district courts. It is not made to appear in said motion that the said amended original answer was set aside on exceptions for a departure in pleading, or on any other ground. On the contrary, it appears that the same was not set aside; and it does not appear from said motion, nor from the record, that any exception was taken to the action of the court in reference to said amended answer, as required by rule 14 (67 S.W. xxi) for the government of district courts. This being the case, the clerk properly left said original answer out of the record. Rule 84 (67 S.W. xxvi). It does not appear from said motion that it is necessary to look to the superseded pleading upon the issue of limitation.
The appellee desires said original answer sent up to this court in order that we may inspect the same on the issue of due order of pleading. Said motion contains certain allegations as to what was pleaded in *475 the said first amended original answer, but said motion is not sworn to, and is not accompanied by a certified copy of said answer.
For the reasons hereinabove stated, said motion is overruled
