Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42. Page: 21
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1875.] ANN BERTA LODGE v. LEVETRTON. 21
Opinion of the court.
question. (Hays v. Wright, 10 Tex., 130; Fullerton v.
Doyle, 18 Tex., 3.)
The answer alleging that plaintiff's vendor was non conmpos
at the date of her power of attorney and deed, if otherwise
sufficient, evidently did not come in time. It was
not filed until after the parties had announced ready, and
the court had acted upon the exceptions to the pleadings
of the parties respectively as they then stood. The announcement
of ready, when there are questions of law to
be acted upon by the court, is never regarded as absolute
and unconditional. It imports, however, that the parties
are ready, unless the rulings of the court upon the pleaditngs
require their amendment, and thereby a continuance
by one or the other of the parties may become necessary.
And although it is unquestionable that the party whose
pleading is held defective is entitled to amend his pleading
for the purpose of curing such defect, notwithstanding
Mhis previous announcement of readiness for trial, this only
extends to curing by amendment his defective pleading
previously filed, and does not authorize him, as a matter
of right, to plead new and independent matter, though
it is no doubt within the discretion of the court to permit
him to do so. But this court will not review its action in
rejecting a proffered amendment of this character, unless
it clearly appears that wrong or injustice has been done
thereby. If this was the ground upon which the court rejected
the amended answer which we have been considering,
there is nothing in the record to induce us to reverse
its action. The defendants could also, we must infer, have
gone into this question under the plea of not guilty, as
they did as to the matter alleged in their first amended
answer, if they had desired to do so.
On the trial the defendants objected to the reading in
evidence of the power of attorney under which the deed
to the plaintiff was made, upon the ground that the grantor
was alive and within the jurisdiction of the court, and it
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Texas. Supreme Court. Cases argued and decided in the Supreme Court of Texas, during the latter part of the Tyler term, 1874, and the first part of the Galveston term, 1875. Volume 42., book, 1881; St. Louis, Mo.. (texashistory.unt.edu/ark:/67531/metapth28531/m1/29/?rotate=90: accessed June 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .