Reports of cases argued and decided in the Supreme Court of the State of Texas during a part of December term, 1849. Volume 4. Page: 244

                                
487-488                 SUPREME COURT.
Pettus v. Perry.
lifetime, made and delivered the following instrument in writing, to wit:
" $1,753.90. On settlement this day I owe James F. Perry, executor of Stephen
F. Austin, deceased, seventeen hundred and fifty-three dollars and ninety
cents for value received. December 28th, 1838.'" It also alleged the death of
William Pettus, and that Elizabeth Pettus, the appellant, became the adminiistratrix;
that the instrument sued on was duly presented within twelve months
after the grant of letters of administration upon the estate of the deceased.
The petition was filed on the 27th January, 1845; the defendant filed an answer,
on the 11th April, 1845, in which she set up tlie statute of limitations
and a general denial. No further action seems to have been had until the 8th
of October, 1845, when the defendant filed another answer, in substance the
same as the first. Under this state of pleading, at thle October Term of the
court, there was a verdict and judgment in favor of the plaintiff for $2,047.86.
Special court composed of Chief Justice HEMPHILL, Associate Justice
WHEELER, and JOHN E. CRAVENS, special judge.
Munger, for appellant.
Gillespie, for appellee.
CRAVENS, S. J. The third and last error assigned is the only one which is
deemed necessary to discuss. It is as follows: "The petition shows no cause
of action."
Before proceeding to the examination of this question it is necessary to see
whether the nature of the objection here raised can be inquired into by this
court under the state of the case as presented by the pleadings.
The answer, filed on the 8th of October, subsequent to thle appearance of fihe
defendant, will not be further noticed than to remark that it comes within the
rule previously laid down [4SS] by this court in like cases: ''The filing of pleas
after answer filed, without first obtaining leave of the court, is an irregularity
iot to be sanctioned.7l (Coles v. Kelsey, 2 Tex. R., 543.)
'This being strictly an appellate court, it is our province to decide only
those questions in general which were passed upon or presented to thle court
below." (2 Wend. R., 145; 13 Johns. R., 361.) " The exceptions to the rule are
where the foundation of the action itself appears to have failed, or where the
objection first taken in this court goes to the merits or to the foundation of the
'action, and could not have been obviated had it been made in the court below."
(2 Tex. R., 405.)
The record shows that the limitation or prescription of tlhe laws of the land
was pleaded as a peremptory bar in the court below; but this plea does not
appear to have beeii acted upon or to have entered into the considerations of the
court in the rendition of its judgment; and it might be objected that it could
not properly come within the cognizance of this tribunal, exercising appellate
jurisdiction. "This plea was not withdraw i or the rights claimed thereby
renounced; aind if on examination it be fully sustained by the laws of tile land,
and fa judgment rendered in contravention of such a plea be manifestly erroneous,
the power of this court to refuse the correction of such error because
the point had not attracted the attention of the lower court would be extremely
questionable. The decisions of courts must conform to the laws of the land,
whether that be presented by counsel in tlhe primary or appellate courts or
becomes otherwise manifest to the couit." (Gautier v. Franklin, 1 Tex. R.,
737, 738.)
For the purpose of the decision of this case, the view that I sllall take of it
renders it'wholly immaterial whether the question of the statute of limitation
was presented in the court below or not. 'Therefore any further discussion
of the pleadings or the action of the court below will be avoided as unnecessary
except so far as to ascertain what tle plaintiff relies upon to enable him
to recover.
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