Wischkaemper v. Clement Walker

Appellees filed suit upon a promissory note. Appellants, on April 19, 1932, filed their original answer consisting of a general demurrer and denial. On April 28, 1932, they filed amended answers, consisting of a general demurrer, followed by a special answer setting up certain facts, the effect of which was to show plaintiffs' suit had been prematurely brought. It is appellees' contention that the latter was in effect a plea in abatement and not being filed in due order of pleading has been waived. Exception was sustained to same and judgment rendered for appellees. The action of the trial court in sustaining an exception to the plea mentioned is the sole law question presented by this appeal.

A plea of this nature has been held to be a plea in abatement. 1 C.J. p. 108; 1 Tex.Jur. p. 131, § 95. Such dilatory pleas are waived by filing an answer to the merits ahead of them. 1 Tex.Jur. p. 166, §§ 121, 122; Holt v. Farmer (Tex.Com.App.) 56 S.W.2d 633.

The judgment is affirmed.