justness claim in Texas

1970Windom v. Howard (1894) 86 Tex. 560 , 26 S.W. 483, 486 ; Stein v. Ham-man, 118 Tex. 16 , 6 S.W.2d 352 , 9 S.W.2d 1104 ; Hanley v. Oil Capital Broadcasting Ass’n (1943), 141 Tex. 243 , 171 S.W.2d 864, 865 ; First Nat.

1945Webber v. Cochrane, 4 Tex. 31 ; Howard et al. v. Windom, supra; York v. Hughes, Tex.Com.App., 286 S.W. 165 ; Stein v. Hamman et al., 118 Tex. 16 , 6 S.W.2d 352 ; 118 Tex. 16 , 9 S.W.2d 1104 ; Elsby v. Luna et ux., Tex.Com.App., 15 S.W.2d 604 ; 26 Texas Digest, Limitation of Actions, <§^148(2).

1967Generally, to take a case out of the operation of the statute of limitation, the writing must contain an acknowledgment of the justness of the claim, and an expression of willingness to pay. 37 Tex.Jur.2d 341, § 162; Windom v. Howard, 86 Tex. 560 , 26 S.W. 483 (1894); York v. Hughes, 286 S.W. 165 (Com.App., 1926); Elsby v. Luna, 15 S.W.2d 604 (Com.App., 1929).

1967Generally, to take a case out of the operation of the statute of limitation, the writing must contain an acknowledgment of the justness of the claim, and an expression of willingness to pay. 37 Tex.Jur.2d 341, § 162; Windom v. Howard, 86 Tex. 560 , 26 S.W. 483 (1894); York v. Hughes, 286 S.W. 165 (Com.App., 1926); Elsby v. Luna, 15 S.W.2d 604 (Com.App., 1929).

1970It said that “ — if the writing acknowledges the justness of the claim, the acknowledgment imports (1) an admission that the claim is a subsisting debt and (2) a promise to pay it, if unaccompanied by any circumstances repelling the presumption of willingness or intention to pay.” In Elsby v. Luna (Tex.Com.App.), 15 S.W.2d 604, 605 , it was held that a promise to pay need not be expressed in the writing but would be implied, that “an unqualified and unequivocal acknowledgment in writing on the part of the debtor, of the existence of the indebtedness, unaccompanied by expressions indicating an

1967Generally, to take a case out of the operation of the statute of limitation, the writing must contain an acknowledgment of the justness of the claim, and an expression of willingness to pay. 37 Tex.Jur.2d 341, § 162; Windom v. Howard, 86 Tex. 560 , 26 S.W. 483 (1894); York v. Hughes, 286 S.W. 165 (Com.App., 1926); Elsby v. Luna, 15 S.W.2d 604 (Com.App., 1929).

1967Generally, to take a case out of the operation of the statute of limitation, the writing must contain an acknowledgment of the justness of the claim, and an expression of willingness to pay. 37 Tex.Jur.2d 341, § 162; Windom v. Howard, 86 Tex. 560 , 26 S.W. 483 (1894); York v. Hughes, 286 S.W. 165 (Com.App., 1926); Elsby v. Luna, 15 S.W.2d 604 (Com.App., 1929).

1963Art. 5539 of our statutes provides: “When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.” This Court, in Tolleson v. McAlister, Tex. Civ.App., 33 S.W.2d 573 , (1930) writ refused, made this statement: “Our courts have uniformly held that this statute is mandatory and that where a suit is brought on a debt that is barred, the found

1943And, if the writing acknowledges the justness of the claim, the acknowledgment imports (1) an admission that the claim is a subsisting debt and (2) a promise to pay it, if unaccompanied by any circumstances repelling the presumption of willingness or intention to pay; Webber v. Cochrane, 4 Texas 31 ; Howard et al v. Windom, supra; York v. Hughes (Com.

1937Article 5539, R.C.S., is as follows: “When an .action may appear to he barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.” “The phrase, acknowledgment of the justice of the claim, as used in the statute, imports an admission at the time, that the claim is a subsisting debt; and, if unaccompanied by any circumstances repelling the presumption of the party’s will

1963Art. 5539 of our statutes provides: “When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.” This Court, in Tolleson v. McAlister, Tex. Civ.App., 33 S.W.2d 573 , (1930) writ refused, made this statement: “Our courts have uniformly held that this statute is mandatory and that where a suit is brought on a debt that is barred, the found

1963Art. 5539 of our statutes provides: “When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.” This Court, in Tolleson v. McAlister, Tex. Civ.App., 33 S.W.2d 573 , (1930) writ refused, made this statement: “Our courts have uniformly held that this statute is mandatory and that where a suit is brought on a debt that is barred, the found

1943Trainer v. Seymour, 10 Tex.Civ.App. 674 , 32 S.W. 154, 155 ; Smith v. Fly, 24 Tex. 345 , 76 Am.Dec. 109; Windom v. Howard, 86 Tex. 560 , 26 S.W. 483 ; Coles v. Kelsey, 2 Tex. 541 , 47 Am.Dec. 661; Cotulla v. Urbahn, 104 Tex. 208 , 135 S.W. 1159 , 34 L.R.A.,N.S., 345, Ann.Cas.1914B, 217; Bell v. Morrison, 26 U.S. 351, 362 , 1 Pet. 351, 362 , 7 L.Ed. 174 ; Gathright v. Wheat, 70 Tex. 740 , 9 S.W. 76 .

1943Trainer v. Seymour, 10 Tex.Civ.App. 674 , 32 S.W. 154, 155 ; Smith v. Fly, 24 Tex. 345 , 76 Am.Dec. 109; Windom v. Howard, 86 Tex. 560 , 26 S.W. 483 ; Coles v. Kelsey, 2 Tex. 541 , 47 Am.Dec. 661; Cotulla v. Urbahn, 104 Tex. 208 , 135 S.W. 1159 , 34 L.R.A.,N.S., 345, Ann.Cas.1914B, 217; Bell v. Morrison, 26 U.S. 351, 362 , 1 Pet. 351, 362 , 7 L.Ed. 174 ; Gathright v. Wheat, 70 Tex. 740 , 9 S.W. 76 .

2023DeRoeck, 556 S.W.3d at 834 . “[I]f the writing acknowledges the justness of the claim, the acknowledgment imports (1) an admission that the claim is a subsisting debt and (2) a promise to pay it, if unaccompanied by any circumstances repelling the presumption of willingness or intention to pay.” Hanley v. Oil Capital Broad.

2019App. P. 47.4. 3 Stewart, 80 S.W.3d 586, 591–92 (Tex. 2002) (per curiam) (internal quotation marks omitted). “[I]f the writing acknowledges the justness of the claim, the acknowledgment imports (1) an admission that the claim is a subsisting debt and (2) a promise to pay it, if unaccompanied by any circumstances repelling the presumption of willingness or intention to pay.” DeRoeck II, 556 S.W.3d at 834 .

1963Art. 5539 of our statutes provides: “When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.” This Court, in Tolleson v. McAlister, Tex. Civ.App., 33 S.W.2d 573 , (1930) writ refused, made this statement: “Our courts have uniformly held that this statute is mandatory and that where a suit is brought on a debt that is barred, the found

1963Art. 5539 of our statutes provides: “When an action may appear to be barred by a law of limitation, no acknowledgment of the justness of the claim made subsequent to the time it became due shall be admitted in evidence to take the case out of the operation of the law, unless such acknowledgment be in writing and signed by the party to be charged thereby.” This Court, in Tolleson v. McAlister, Tex. Civ.App., 33 S.W.2d 573 , (1930) writ refused, made this statement: “Our courts have uniformly held that this statute is mandatory and that where a suit is brought on a debt that is barred, the found

1974Article 5539, Tex.Rev.Civ.Stat.Ann.; Krueger v. Krueger, 76 Tex. 178 , 12 S.W. 1004 (1890); Mullens v. Bailey, 374 S.W.2d 455 (Tex.Civ.App. — Corpus Christi 1964, no writ); Miller v. Thomas, 226 S.W.2d 149 (Tex.Civ.App. — Amarillo 1949, writ ref’d); 37 Tex.Jur.2d, Limitation of Actions, Section 157, et seq. (1962).

1974Article 5539, Tex.Rev.Civ.Stat.Ann.; Krueger v. Krueger, 76 Tex. 178 , 12 S.W. 1004 (1890); Mullens v. Bailey, 374 S.W.2d 455 (Tex.Civ.App. — Corpus Christi 1964, no writ); Miller v. Thomas, 226 S.W.2d 149 (Tex.Civ.App. — Amarillo 1949, writ ref’d); 37 Tex.Jur.2d, Limitation of Actions, Section 157, et seq. (1962).

1982The case most nearly in point is Nuclear Corporation of America v. Hale, 355 F.Supp. 193 , U.S. Dist.

1978McDonald v. Newlywed’s Inc., 483 S.W.2d 334 (Tex.Civ.App.-Texarkana 1972, writ ref. n. r. e.).

1975Fn. 1, 462 S.W.2d 543 , as, for example, “when the plaintiffs petition fails to state a legal claim or cause of action.” But cf. Texas Department of Corrections v. Herring, 513 S.W.2d 6 (Tex.1974), which holds that summary judgment on pleadings insufficient to state a cause of action is improper, the proper attack on the deficiency of pleading being by special exceptions.

1974In McAllen v. Wood, 201 S.W. 433 (Tex.Civ.App. — San Antonio 1918, writ ref’d), the court, in upholding an appointment of a person named Wood as guardian of four minor children as against the *751 mother of the children, stated that since the mother was claiming title to all of the estate under instruments which were executed under circumstances raising a question as to their effect and validity, the interest of the minors could only be adequately protected by having them represented by a disinterested person who would have the validity of such instruments tested in a court of competent jurisd

1974Article 5539, Tex.Rev.Civ.Stat.Ann.; Krueger v. Krueger, 76 Tex. 178 , 12 S.W. 1004 (1890); Mullens v. Bailey, 374 S.W.2d 455 (Tex.Civ.App. — Corpus Christi 1964, no writ); Miller v. Thomas, 226 S.W.2d 149 (Tex.Civ.App. — Amarillo 1949, writ ref’d); 37 Tex.Jur.2d, Limitation of Actions, Section 157, et seq. (1962).

1972The rule is stated in State v. Post, 169 S.W. 401, 406 [Tex.Civ.App., Austin, 1913; on certified questions, 106 Tex. 468 , 169 S.W. 407 (1914); and reversed, 106 Tex. 500 , 171 S.W. 707 (1914)], in this manner: “The court takes judicial cognizance of the fact that the state was originally the owner of all lands in Texas not granted by the government of Spain, or of Mexico or the Republic of Texas, prior to the organization of this state.

1972The rule is stated in State v. Post, 169 S.W. 401, 406 [Tex.Civ.App., Austin, 1913; on certified questions, 106 Tex. 468 , 169 S.W. 407 (1914); and reversed, 106 Tex. 500 , 171 S.W. 707 (1914)], in this manner: “The court takes judicial cognizance of the fact that the state was originally the owner of all lands in Texas not granted by the government of Spain, or of Mexico or the Republic of Texas, prior to the organization of this state.

1972The rule is stated in State v. Post, 169 S.W. 401, 406 [Tex.Civ.App., Austin, 1913; on certified questions, 106 Tex. 468 , 169 S.W. 407 (1914); and reversed, 106 Tex. 500 , 171 S.W. 707 (1914)], in this manner: “The court takes judicial cognizance of the fact that the state was originally the owner of all lands in Texas not granted by the government of Spain, or of Mexico or the Republic of Texas, prior to the organization of this state.

1972The rule is stated in State v. Post, 169 S.W. 401, 406 [Tex.Civ.App., Austin, 1913; on certified questions, 106 Tex. 468 , 169 S.W. 407 (1914); and reversed, 106 Tex. 500 , 171 S.W. 707 (1914)], in this manner: “The court takes judicial cognizance of the fact that the state was originally the owner of all lands in Texas not granted by the government of Spain, or of Mexico or the Republic of Texas, prior to the organization of this state.