Sasser v. Davis , 27 Tex. 656 ( 1864 )

Moore, J.

The general exception of the defendant in the court below to the plaintiff’s petition should have been overruled. The ground upon which the court acted in sustaining it is not disclosed by the record; but if, as is said in the brief of appellant's counsel, it was for the reason that the petition showed that the plaintiff’s cause of action was barred by the statute of limitations, it was clearly improper. The amendment of the- plaintiff relieved his petition from any just ground of exception upon this ground, if any such had been taken by the defendant’s answer. Although the 1st section of the statute of limitations declares that all actions for injuries- to the person of another shall be brought “within one year next after the cause of such action or suit, and not after,” this general provision is unquestionably controlled by the 11th section of the same law, which enacts that “ no limitations, except in the cases provided for in the 8th section of .this act, shall run against infants, married women, persons imprisoned, or persons of unsound mind, during the existence of their respective disabilities.” The allegations of the amended petition-brought the plaintiff within this exception to the general rule in the statute.

If, however, the petition were in this respect defective, it could not be reached by a general exception, which is all that is shown by the record in this case. The contrary view of the law" was taken in some of the earlier decisions of this court, but it was subsequently overruled by a statute passed for this purpose, by which it was enacted that limitation should not be made available in any suit, unless it is specially set forth as a defence in the answer. But this .by no means is to be construed as authorizing the court to sustain a general exception to the petition on the ground that it is barred by limitations, because, as in this case, it is presented as an answer of fact for the jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.