Power's Admr'x v. Smith's Adm'r, 14 Tex. 4

Power's Admr'x v. Smith's Adm'r

14 Tex. 4 | Tex. | 1855

Wheeler, J.

Upon the argument of this case at a former Term of the Court, very many, and some very important questions were presented, arising upon the various rulings of the Court disclosed by the record; upon some of which the members of the Court sitting in the case, being divided in opinion, it was certified to the Executive. As the parties have permitted several terms to pass by without taking measures to have a Court constituted to decide the case, and manifest no disposition to do so, we have thought proper to resume its consideration, upon the suggestion of a ground which had escaped our attention, and in which we can concur in its disposition, waiving the questions which formerly embarrassed and prevented its decision.

There has been no question that the judgment recovered by the defendant in reconvention must be reversed, on account of erroneous rulings upon the trial; but the question has been as to the final disposition of the case, and the principles upon which it should be determined. In the view we'shall take of the case, the discussion of questions mooted in the elaborate argument of counsel, may be dispensed with.

• The notes sued on were due respectively on the 8th of June, 1839, and 1840. The principal demand pleaded in set-off and reconvention was due on the 13th of May, 1840 ; the smaller *5demand at an earlier date. The suit was brought on the 4th of January, 1845. And the original answer was filed on the 25th of the same month. The defendant filed an amended answer on the 11th of October, 1847 ; and it appears by the record (p. 83) that “ as to his plea in set off he relied only upon the amended answer of the 11th of October, 1847.” If it were doubtful whether the right of action upon the demands pleaded in set off and reconvention were barred at the time of filing the original answer, it is free from doubt that they were so at the time of filing the amended answer; and that objection was raised at the trial. But it is evident that the right of action of both plaintiff and defendant was barred at the time of bringing the suit, upon the principle of the case of Gautier v. Franklin (1 Tex. R. 732, 743, 744) and other cases to which the same principle has been applied. The judgment must therefore be reversed and the case dismissed, unless the parties see proper to have it remanded to afford them an opportunity to amend, if they can, so as to take the case out of the operation of the statute. And there is little reason to apprehend, from the history which the record affords of the transactions between the parties, that this disposition of the case will not come as near attaining the justice of it, as any result which would probably be attained by further litigation.

Reversed and dismissed.