Lewter v. Dallas County ( 1975 )

ON REHEARING

Appellee, defendant County of Dallas on Motion for Rehearing contends this court erred in applying Rule 90 T.R.C.P.; that Rule 90 applies only to a party seeking a reversal, and not to a party seeking to uphold a judgment which presumably held that pleadings were insufficient; and cites Ward v. Clark, Tex.Civ.App., NWH, 435 S.W.2d 621; Butler, Williams & Jones v. Goodrich, Tex.Civ.App., NRE, 306 S.W.2d 798; Lincoln v. King, Tex.Civ.App., NWH, 193 S.W.2d 437, and Goodman v. Art Reproduction Corp., Tex.Civ.App., NRE, 502 S.W.2d 592; as controlling.

We reject such contention. Insufficiency of pleading cannot be raised for the first time on appeal. Sherman v. Provident American Ins. Co., Tex.S.Ct., 421 S.W.2d 652; Bednarz v. State, 142 Tex. 138, 176 S.W.2d 562; Texas Dept, of Corrections v. Herring, Tex.S.Ct., 513 S.W.2d 6.

Herring, supra, is directly in point to the factual situation in the case at bar, and expressly holds that the protective features .of special exception procedure should not be circumvented by a motion for summary judgment on the pleadings, and that to do so would revive the general demurrer discarded by Rule 90, T.R.C.P. Swilley v. Hughes, Tex.S.Ct., 488 S.W.2d 64, cited in original opinion is to the same effect.

Motion for rehearing overruled.