E. C. DeWitt and others v. A. H. Jones and another, 17 Tex. 620

Hemphill, Ch. J. This was a suit to revive judgment. The plaintiffs recovered, the defendants appealed and assign that there was error— 1st. In overruling demurrer to the petition. The demurrer is general, but the ground on which it had been supported in argument is, that execution having issued within twelve months from the date of the judgment, a suit to revive by scire facias would not lie ; that this right of revival is given by statute only in cases where execution has not issued within one year after the rendition of the judgment. (Hart. Dig.

Arts. 1623, 1624 and 2378.) To this it is replied, that though execution was issued before the lapse of twelve months, and there had been other executions subsequently, yet that more than five years had elapsed between the issue of the last execution and the filing of this suit; that "the judgment, from want of a continuous succession of executions, had become dormant, would not sustain an execution, and that plaintiffs had a right consequently to bring their scire facias. The point has been well argued by counsel, and they have referred to authorities in support of their respective views.

Time will not allow us to follow the argument in detail. Suffice it to say, that we assent to the views presented by the counsel for appellee, and that they are in harmony with the previous decisions of this Court. The judgment becomes as dormant by failure to issue executions in the subsequent, as it does in the first year after its rendition ; and the right to revive exists in either case. On the first, it is given by statute ; in the latter, from analogy to the rule prescribed in the statute.

Here there was a hiatus of five years, and the presumptions against the judgment are certainly as strong as those which would have arisen had the failure to issue execution been in the first year. (1 Tex. R. 124 ; Id. 514 ; 7 Id. 269 ; 9 Id. 477.) The second assignment calls in question the refusal of the Court to allow defendants to amend their answer.

The statement of facts represents that the parties announced themselves ready for trial, when the defendants presented their demurrer, against the objections of the plaintiffs, that it was too late; but it was heard and was overruled by the Court, when defendants asked leave to amend the answer, which was refused because the parties had before announced themselves ready for trial. If there were no other reason for the refusal of leave to amend, than that announced in the record, there would be error for which the judgment must have been reversed.

The prohibition of amendment, after announcement of ready for trial, must be understood of readiness for trial upon the issues of fact, and not upon the issues of law, which must be first disposed of. (4 Tex. R. 454 ; 10 Id. 520.) But it does not appear what the amendment was, or its object. It may ‘have been frivolous. It may have required a continuance when, under the circumstances, the parties may not have been entitled to such delay.

Under our system of pleading, a defendant is required, in his first answer, to plead all his defences, of law and fact, and he is therefore not entitled to such latitude of amendment as if allowed to demur first, and if overruled, then to plead to the merits. As we cannot determine from the record, whether the amendment was one of substance, or properly admissible at the time and under the circumstances, we are of opinion that the refusal, though for a wrong reason, was not such error as would entitle the defendants to a reversal.

In relation to the other assignments, it is not necessary to say more than that there was no error in allowing the witness to explain the entries of receipts on the execution docket. The entries were evidently made from memory. The exact date is not given, but in this mode : “ some time in the year 1849, say October 1st.” The presumption would be very strong, that a receipt for about the same amount and nearly of the same date, would be for the identical sum credited on the docket; and the plaintiffs had a right to show that presumption was in accordance wth the fact. Judgment affirmed.