Love v. Austin Bridge Co. , 1928 Tex. App. LEXIS 358 ( 1928 )

On Motion of Austin Bridge Company for Rehearing.

The contention in the motion that this court erred when it held that the sureties on the bond of Harris & Powell had a right to defend against the recovery sought against them on the ground that a cause of action on the bond had not arisen at the time the suit was commenced is sustained. The bridge company insists, and we agree, that the sureties were in the attitude of having “waived [quoting] their right to object on that ground by not pleading the same in abatement in due order of pleading.” As correcting the error does not require a different disposition to be made of the appeal, the motion is overruled.