Opinion
No. 2530.
March 28, 1934. Rehearing Denied April 4, 1934.
Appeal from Jefferson County Court; W. S. Nichols, Judge.
Action by L. H. Mothner against J. J. Granata and another. From a judgment sustaining a special exception to the first amended original petition and dismissing the case, plaintiff appeals.
Affirmed.
D. E. O'Fiel, of Beaumont, for appellant.
H. P. Barry and Jas. A. Harrison, both of Beaumont, for appellees.
This case is before us as an appeal from a judgment of the county court, of Jefferson county at law, sustaining a special exception to the first amended original petition of appellant and dismissing the case. The appellant was plaintiff below, and the exception of the defendants was to the effect that plaintiff's cause of action was barred by the statute of limitation of two years (Rev.St. 1925, art. 5526) at the time his first amended original petition was filed, February 6, 1931.
This case was before us on a former appeal and was reversed and remanded on other grounds than limitation, that issue not being raised on the former appeal. See Granata v. Mothner (Tex.Civ.App.) 44 S.W.2d 817.
As more fully appears from the facts stated in the opinion on the former appeal, appellant's cause of action is for brokerage commission claimed to be due appellant for procuring a purchaser for certain real estate listed with him by appellees for sale under an exclusive agency. The cause of action arose March. 15, 1928. The exception which was sustained by the trial court is as follows:
"They except specially to all of that portion of the petition alleging as a cause of action and a ground of recovery that plaintiff was the exclusive agent of defendants to sell said land and defendants gave to him an exclusive contract of agency with right to a commission regardless of whether plaintiff found the purchaser or sold the land or not because said cause of action was not asserted in plaintiff's original petition and is asserted for the first time in plaintiff's first amended petition, and, as appears from the file mark on said last named petition, more than two years had elapsed from the date plaintiff's said cause of action accrued, if any he ever had, and the filing of said amended petition and said asserted cause of action based on an exclusive agency, affirmatively appears to have been barred by the two years statute of limitation and is now barred thereby."
Plaintiff's original petition does not appear in the transcript. On application of appellant we granted the writ of certiorari to have the original petition sent up, and in response to the writ the clerk of the county court sent up a copy of an instrument not signed by plaintiff or his counsel, to which the clerk attaches the following certificate:
"I, Fred G. Hill, clerk County Court of Jefferson County at Law, hereby certify that the above and foregoing is a true and correct copy of what purports to be a copy of the plaintiff's original petition in Cause No. 8535, styled L. H. Mothner v. J. J. Granata, et al., as same appears on file among the papers of said cause in my office."
The file mark on that instrument is dated March 27, 1931. There is nothing in the transcript to show when the original petition was filed, nor what its contents were, other than the above-mentioned purported copy.
The judgment of the trial court sustaining the exception and dismissing the case must be affirmed. Appellant contends that the trial court could look only to the first amended original petition in passing upon the exception, and that since it does not affirmatively appear in said petition that the cause of action was barred at the time the cause of action was originally sued upon, the judgment of the trial court should be reversed. This contention is without merit. Regardless of the rule announced in earlier cases, such as Oswald v. Giles (Tex.Civ.App.) 178 S.W. 677, 679, it is now the rule that, in passing upon an issue of limitation raised by exception to the pleadings, it is the duty of the trial court to look to the file marks and contents of superseded pleadings. Rule 14 for district and county courts; Askey v. Power (Tex.Com.App.) 36 S.W.2d 446; Braddock v. Brockman (Tex.Civ.App.) 49 S.W.2d 908. In the absence of a contrary showing, the presumption is that the trial court did look to the superseded pleadings and correctly determined therefrom that plaintiff's cause of action was barred. The first amended original petition, upon which the case was tried, and the only pleading of the plaintiff which is before us, was filed nearly three years after the cause of action arose. We have examined the record carefully and there is nothing in it from which we can determine that the trial court did not correctly dispose of the issue of limitation. The judgment of the trial court is affirmed.