Hall v. Matthews , 1938 Tex. App. LEXIS 120 ( 1938 )

This is an appeal by way of writ of error from a judgment of the County Court of Brewster County sustaining a general demurrer to plaintiff's (appellant's) petition. Defendant's pleadings contained a general demurrer in the usual form and a pleading styled a plea in abatement, which was not filed in due order. The third paragraph of the so-called plea in abatement was sustained by the Court. That paragraph was really a general demurrer, being merely an exception upon the ground that the petition "fails to set out or sufficiently describe or declare upon or allege any obligation or instrument as a basis for his purported or attempted cause of action." The instrument declared upon was a dishonored check. It was nowhere alleged that defendant executed or delivered the check, nor were any other facts alleged showing liability thereon. Plaintiff declined to amend and the case was dismissed. The judgment of the Court was correct. Further opinion is unnecessary. Tucker v. Higdon, Tex. Civ. App.115 S.W.2d 973; Associated Indemnity Corporation v. Gatling, Tex. Civ. App.75 S.W.2d 294.

The judgment is affirmed.