an amended complaint adding the correct description of property does not state a different cause of action, therefore, the amendment relates back to toll the running of the adverse possession statute of limitations
How later courts described this case
- an amended complaint adding the correct description of property does not state a different cause of action, therefore, the amendment relates back to toll the running of the adverse possession statute of limitations
Written by the judges who cited it.
The opinion
CORNELIUS, Chief Justice,
concurring.
I agree with the result reached by Justice Bleil’s opinion, but for a different reason. I recognize that Schoonmaker v. Clardy, 244 S.W. 124 (Tex.Com.App.1922, judgment adopted), was decided prior to the amendment of Tex.Rev.Civ.Stat.Ann. art. 5539b and at a time when the “different cause of action” test was dispositive of the limitation issue. I believe, however, that even under the “new, distinct or different transaction” test which now applies, the description in an amended trespass to try title petition of an entirely different tract of land from that described in the previous pleadings would *185 constitute a declaration upon a new, distinct and different transaction. Nevertheless, that need not change the result here, because the appellant and the appellee, when the error in the description was discovered, entered into a written stipulation by which they agreed that the tract as described in the amended pleading was the same tract of land claimed by both of them and which was the subject of the lawsuit, both under the original and the amended pleadings. Having so stipulated, appellant will not now be heard to say otherwise, and contend that the amended pleading pertained to a new, distinct or different matter from the first.