John Martin et al. v. E. A. Wayman et al., 38 Tex. 649

Walker, J. In our discussion of this case we will-reverse the order in which counsel present the different-points raised upon the record. As to the act of February 10, 1853 (Paschal’s Digest, 4461), we cannot see how that act could affect the rights . of the parties to this suit. It was simply intended to relinquish all the right and interest of the State (if it had any), to Jose Salvador de la G-arza, in 59i leagues of land known as El Espíritu Santo grant.

It did not, in our judgment, in any way affect the legal .status of the parties to this suit, and the judgment of the District Court to this effect we think correct. This case was once before passed upon by this court, .-and from this circumstance arises the most difficult questions herein to be determined. None of the questions Involved in the former case are presented; but the submission of the record, in No. 988, led to some confusion, .and the labor of writing an opinion predicated solely upon the issues presented in that case.

We can only look upon this as labor lost, and we now address ourselves to the points involved in this case. The suit appears. to have been filed on the tenth of ' .March, 1855. On the eighth of August, 1871, the appel..-lees, defendants below, filed an amended answer, setting mp the plea of res judicata; also, that the former adjudication was upon the merits, and that the present action was barred by limitation.

The plaintiffs below filed special exceptions, and, without waiting for a judgment of the court on these exceptions, the appellees filed a plea in avoidance, setting up the removal of the appellants’ .disability of minority, and ^averring that the statute of limitations was a bar to this suit. The appellants again excepted, and the court overruled ■the exception. This was followed by an amended petition, setting up the act of the tenth of February, 1852, as a source of title to the appellants.' (Paschal’s Digest, -4461.) To this petition the defendants demurred.

The -demurrer was sustained, and the plaintiffs not asking to .amend, the judgment was rendered for the appellees, from which this appeal has been taken. We must now, in order to test the correctness of the ladings of the court, examine into some of the facts of the case. In the former suit, we think undoubtedly, ¿here was a trial upon the merits before a jury, who returned their verdict for the appellees, and the judgment followed. This trial appears to have taken place on the eleventh «of October, 1849.

An appeal was taken to this court, but for some reason or other the appeal was not prosecuted; and the cause was dismissed on the twenty-eighth of May, 1850. One year was allowed the appellants in which to bring a new «suit, but this suit was not filed until the tenth of March, 1855. But it is answered that at the time the case was dismissed by the Supreme Court the appellant, Mary Grill-more was a feme covert, and that the statute did not run ¡against her. It appears that she was married on the twentieth of October, 1849 — only a few days after the trial of the cause in the District Court.

She was a minor at the time, but her marriage removed her minority.

Article 5299, Pas"chal’s Digest, says, in case a verdict and judgment pass ¡against the plaintiff, and he determine to appeal to the Supreme Court, and the Supreme Court should decide ¡against him, he, the said plaintiff, shall have one year from the decision of the Supreme Court in which to bring .a new action. The dismissal of a cause by the Supreme Court cannot be regarded as a decision. We are of opinion that when the first suit was dismissed by the Supreme Court the statute of limitation had then run from the eleventh of October, 1849, the date of the trial in the District Court.

At that time both of the appellants were minors, but they soon after married. By their marriages they removed the disability of minority, and it is a settled principle of law that the operation of the statute cannot be defeated by tacking one disability upon another. Mary Gilmore married on the twentieth of October, 1849; her sister, Agnes, married on the twelfth of September, 1850. We are then of opinion that this suit should have been brought before the twelfth of December, 1851. This, then, brings us to the conclusion that the plea of res judicata was properly sustained by the court below.

But the appellants, in an amended petition, set up that they were non-residents at the time the first suit was decided against them, and were therefore entitled to two years in which to bring their second action; and that before the expiration of that time the Legislature had granted them the land. This amended petition was demurred to, and, as we have already stated, the demurrer was sustained, in our judgment, properly. This disposes of everything in this case which we deem it important to notice, and for the reasons given we affirm the judgment of the District Court. Aeeirmed.