Koschwitz v. Healy

Citations

• 36 Tex. 666

Syllabus

<p>In 1868, D. presented to K., as administrator, an account for allowance against an estate the latter represented. The account was not allowed by K., and D. instituted suit thereon one day before the same was barred by limitation. Two years thereafter, and while the suit was pending, H. purchased the account from D., and then filed a plea of intervention, setting up his purchase of the account, and alleged that the costs of the suit had all been paid up till that date, and asked to have the name of the original plaintiff stricken out, and that he be allowed to prosecute the suit in his own name. The court below allowed the intervention, and D. was stricken out as plaintiff and H. substituted in his stead, and the suit allowed to proceed. Held, to be error. By the intervention and its allowance by the court, the action was so changed as to constitute a new suit; and the action should have been regarded as pending only from the time of intervention, and was therefore barred. It seems, however, that H. might have prosecuted the original suit of D., on terms.</p>