Cotulla v. Urbahn

ON APPLICATION FOR WRIT OF ERROR. The note sued on had been due more than four years before the suit was brought and therefore appeared from the original petition to be barred. When the defendant (plaintiff in error) invoked the statute of limitation by exception and plea, the plaintiff (defendant in error) by supplemental petition set up a new promise. The true cause of action was upon the new promise and not upon the original note, according to a long line of decisions, and from this it follows that the purpose of further pleading on the part of plaintiff was to cure a defect in his petition so as to make it show a good cause of action, which required an amendment of that petition and not a supplemental petition. We therefore do not agree with the Court of Civil Appeals in the opinion that the course first taken by plaintiff was correct. The trial judge, however, took the same view that we do, sustaining exceptions to the supplemental petition, and plaintiff thereupon set up the new promise in an amended petition. We agree with both courts in holding that the fault in pleading was a mere irregularity which did not prevent the declaring upon the new promise from having the effect of stopping limitation from the time of the filing of the supplemental petition. Refused. Opinion delivered April 13, 1910. *Page 211