American Nat. Bank v. Haggerton , 250 S.W. 279 ( 1922 )

On Motion for Rehearing. At a former day of this term we reversed and remanded the judgment upon fundamental error in consideration of appellant's motion for rehearing. Our attention has been called to the fact that, although the original answer contains a general demurrer, it was not presented to the court, and, while the petition failed to allege that the plaintiff had tendered to appellant an abstract showing a good and merchantable title, the defendant alleged that this had not been done and assumed the burden of proof upon that issue. Having presented the issue and both parties having tried the case upon that theory in the lower court, we are convinced, upon reconsideration, that the judgment should not be reversed upon this ground. The rule is well established in this state that where the plaintiff's petition fails to make a necessary averment of fact, but the omission is supplied by such an allegation in the answer, even though where a demurrer to the petition upon that ground is overruled, the defect in the petition is unimportant, and the appellate court is not justified in reversing the case for that reason. Boettler v. Tendick,73 Tex. 488, 11 S.W. 497, 5 L.R.A. 270; M., K. T. R. Co. v. Wickham (Tex. Civ. App.) 44 S.W. 1023; Zan v. Clark, 53 Tex. Civ. App. 525,117 S.W. 892; Grimes v. Hagood, 19 Tex. 246; Hill v. George, 5 Tex. 87.

Our former opinion on motion for rehearing is set aside and withdrawn, and the judgment as announced in the original opinion is affirmed.

KLETT, J., not sitting.