Hatler & Osborne v. Hunter & Lee

Opinion by Winkler, J. § 9. Demurrer and exceptions. Any irreconcilable repugnancies between the original and amended petitions should be taken advantage of by exceptions or demurrer. § 10. Amendments of pleading. Smith v. McGauhey is cited, where it is held that the rules respecting the effect of a departure in pleading can have no application to amendments under our system. Where a party seeks to introduce, by amendment, matter which cannot be properly joined, the court on exceptions will exclude the proposed amendment. But the attempted amendment, however inconsistent or repugnant to, or however wide a departure from the case first stated, will not of course vitiate and annul the former pleading of the party. [13 Tex. 464.] Reversed and remanded.