Oldham v. Erhart

Decided July 1, 1856

Texas Supreme Court · decided 1856-07-01

Tried below before the Hon. R E. B. Baylor. Suit by appellant to enjoin an execution, on the ground that the judgment had become dormant by reason of the failure to issue executions from year to year. The defendant answered by plea in reconvention, setting out all the facts, allowing credits for payments made, and praying judgment for the balance due.

Cited by 2 later decisions — most recently January 1925

2 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1856-07-01

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Hemphill, Ch. J.

¶1We are of opinion that there is no error in the judgment. The plaintiff avers the execution to have been void. This is not disputed by the defendant. Of course there can be no controversy on that point.

¶2The defendant alleges facts in her cross petition, which would entitle her to a recovery. These are sustained by proof, and the verdict could not be set aside for the want of evidence.

¶3Nor was there error in overruling the plea in abatement. The suit to revive by scire facias had been discontinued before the plea in abatement to the cross petition was filed, and in a case decided at the last Term, not yet published, it is believed to have been held that a plea setting up the pendency of a prior suit, should not be sustained, provided that before the filing of the plea, the first suit were discontinued.

¶4Judgment affirmed.