Smith's Adm'r v. McGaughey

Wheeler, J. There can be no question of the legal sufficiency of the original petition. It is unnecessary to discuss the merits of the first amendment, it having been stricken out 'and abandoned by the subsequent amendment. The objection taken by exceptions to the latter was, that it set up a new and distinct cause of action, barred by the statute of. limitations. The objection seems not to be well taken. The new matter stated in the final amendment, appears to have been intended as a replication to the matters set up in the answer ; rather than as introducing any new demand, or right of action. If anything contained in the amendment can be considered as introducing a new ground of action, it is the averment that, since acquiring possession of the land, under their purchase from the plaintiff, the defendants have relocated and obtained a patent for it, with the view of defrauding the plaintiff. There is nothing in this averment inconsistent with the right of action set up in the original petition ; and it is an evidence that it was not intended to make it a distinct and independent ground of a recovery, that the amendment concludes by praying judgment in terms, for “ said amount specified in the original petition.” But if the amendment be regarded as introducing an additional cause of action, it does not appear on the face of the petition to be barred ; for it does not appear that the defendants asserted any title adverse to the plaintiff more than $wo years before the filing of the last amendment. And although a plaintiff cannot maintain a suit, commenced without any cause of action, by introducing a cause of action which has subsequently arisen, (Bradford v. Hamilton, 1 Tex. R. 55,) without at least, paying the costs, and giving the defend [467] ant every defence he could have urged, had a distinct salt been instituted upon the new cause of action (Henderson v. Kissam, 8 Tex. R. 46;) yet we see no objection to joining new causes of action, which have accrued since the commencement of the suit, for the purpose of avoiding multiplicity oí suits. But we think the amendment in question was not intended to have, and did not have, the effect of introducing a new and independent cause of action. But if it did, and was obnoxious to the exceptions taken, they went only to the amendm..nt; and should have had the effect of excluding the amendment only; and not of dismissing the suit. But it is insisted on behalf of the appellee that the first amendment was a departure, and abandonment of the original cause of action, and had the effect to strike out the original petition, and effectually, finally and irrevocably to defeat the right of action therein set forth. We do not so regard it j and should deem the argument, which ascribes to any amendment such a consequence, unless such was its manifest intention, scarcely to require notice, if the record disclosed any other ground on which the Court may be supposed to have proceeded in dismissing the case. A departure, as known in the Common Law pleadings, cannot fake place until the replication ; and it more frequently occurs in the rejoinder. It is said to be when a party in his replication, or rejoinder, or, it may be in the subsequent stages of pleading, quits or departs from the case, or defence which he has first made, and has recourse to another. Of course, it can fcrwe no application to the petition and answer in our pleading. Where a party seeks to introduce by amendment matter which cannot properly be 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 which, is good and sufficient. The Court will reject the pleading which is bad and retain that which is [468] good. Of course, the party who has committed the mistake of making an improper amendment, when apprised of it by the exception of his adversary, may withdraw and abandon it. It is the province of amendment to enable a party to correct his errors and mistakes in pleading. And there is nothing peculiar in the nature of a mistake committed by amendment, which should take it out of the pale of the law, which allows the correction of other mistakes in pleading. We are of opinion that the Court erred in dismissing the case; for which the judgment is reversed and the cause remanded. Reversed and remanded.