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: 490
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490 HOUSE & Co. AND BURNETT V. COLLINS. [Term of
Argument for the appellants.
1. The plea in reconvention setting up matters arising before
the original judgment could not be heard; and
2. The plea of non est facturn came too late, and should
have been filed before said original judgment.
These exceptions were overruled, and the pleas allowed to
It also appears that the executrix filed and read a motion to
dismiss the cause, by virtue of the power of attorney above
mentioned from T. W. House & Co., after the trial, and just
before the retirement of the jury, and a motion was made to
exclude it from the papers.
The verdict and judgment were in favor of the intervenor
against W. D. Williams, and in favor of the executrix on her
plea in reconvention, against the intervenor. The intervenor
filed a motion for a new trial on the 7th of April, 1871,
and an amendment thereto on April 19, 1871, the original
motion still being undisposed of.
The executrix excepted to the amended motion, on the
ground of its being filed too late.
The exceptions were sustained, the motion overruled, and a
The errors assigned were:
1. Ruling of the court on'the intervenor's exceptions to the
2. Ruling of the court on the defendants' motion to dismiss.
3. Ruling of the court on the motion and amended motion
for a new trial.
.Hancock, West & Northl, for appellants, contended:
1. That in an action or scirefacias to revive a judgment,
nothing can be pleaded which could have been pleaded before
the rendition of the judgment sought to be revived, citing
Bullock v. Ballew, 9 Texas, 498; McFarland v. Irwin, 8
Johns., 77; Thatcher v. Gammnond, 12 Mass., 268.
2. That the executrix cannot set off damages she has suffered
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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/m1/498/: accessed September 23, 2017), University of North Texas Libraries, The Portal to Texas History, texashistory.unt.edu; .