Bone v. Walters , 14 Tex. 564 ( 1855 )

Wheeler, J.

The record, it is true, discloses a very unskillful state of pleading on the part of the plaintiff; and is embarrassed by frequent and very unnecessary repetitions of the same matter. These irregularities, however, appear to have been occasioned by abuses not less apparent on the other Hide. The conduct of the plaintiff’s case, at, and before the trial, was embarrassed by the interposition of a multiplicity of merely frivolous and captious exceptions and objections, impertinent and foreign to the true issues and merits of the case. The defences seemed formed with a view to make the decision of the case turn upon a trial of skill, rather than of legal right, a course not unfrequently resorted, to by a defendant, who, conscious of having no just defence to urge, hopes, by the aid of superior acumen, skill and address in perverting to purposes for which they were not designed, the legal means afforded for his defence, to convert those means into weapons to cut down and destroy the plaintiff’s just rights. To such abuse, it is to be regretted, we have almost daily evidences, our system of pleading is liable, to be perverted ; which, however, it becomes the Courts, as far as possible, to discountenance and correct.

We deem it unnecessary to engage in so useless a consumption of time, as to trace and note all the various and oft-repeated demurrers, amendments and exceptions, which the ingenuity and resources of a number of different counsel, who appear successively to have participated in conducting the pleadings through a series of years, have introduced into the record. The pleadings of the plaintiff disclose a right of action and a meritorious case, at the time of instituting the suit, and the defendant has not pleaded any matter in avoidance. And as there is in the record no authentic statement of facts, of which the Court can take notice, it is well settled that this Court will not revise the rulings of the Court below upon instructions to the jury, but will presume that the verdict and judgment were warranted by the evidence.

There is nothing in the objection, that it is not averred that the defendant was a party or privy to the former suit and judgment recovered by the plaintiff in the county of Nacogdoches. It was not necessary that he should have been either a party or privy to that proceeding. Notice is averred ; but, as a mere trespasser, as he appears, it was not necessary that he should have had notice of the plaintiff’s title. The judgment recovered in that proceeding was a muniment of the plaintiff’s title ; and, as such, was clearly admissible as evidence of her right. And as there is no pretence that the defendant was a bona fide purchaser of the land, it is wholly immaterial whether or not he was a party, or had notice of the proceeding.

The exception that the petition was not properly endorsed, should have been taken at an earlier stage of the pleadings. It was not entitled to be considered, after the defendant by pleading “ not guilty,” years before, had recognized the real character and object' of the suit.

Nor is there anything in the objection that the plaintiff appears to have caused a survey to made of the land, after suit brought. It would indeed be a novel doctrine, if this should be held to defeat her rights.

There might be force in the objection, that it is not averred that the plaintiff’s field notes had been returned to the General Land Office, if the pleadings and issues in the case had not been made up previously to the time when they should have been returned; or if there had been any real or substantial amendment, or attempt to amend by the introduction of new matter after that time. It might have been said, that the fact should be averred. Buffthe truth is, that every material averment contained in the petition, filed in November, 1853, was contained in the previous pleadings of the plaintiff, on which issue had long before been taken. That evidently was not, nor was it intended as properly an amendment of the pleadings, by setting up matter which had arisen since the last continuance, or by the introduction of any new matter whatever.

It. was not intended to change or re-open the issues, or give occasion for further pleading by the defendant, but was simply designed, for the sake of convenience merely, to combine and place in a more connected form upon the record, the allegations of the party, previously made and answered. This is evident from its terms and clear import. It was not the pleading of any new matter ; but simply a reiteration of the old. It did not require an answer ; and is'not entitled to be considered as an amendment. The pleadings containing all the averments of the parties respectively, had been long before made up; and there was no necessity or occasion to plead further, for the purpose of anticipating new objections on the trial, arising out of matters ex post facto. Those objections it was competent to meet and answer by proof, without the necessity of further pleading.

The defendant, without disclosing any merits, has protracted this litigation for years in the Court below, and finally by an appeal to this Court; which seems equally devoid of merits. And we think it proper, and legally correct, to put an end to-the litigation by here affirming the judgment.

Judgment affirmed...