# Stone v. Brown

> Court of Appeals of Texas · July 14, 1981 · 621 S.W.2d 182

URL: https://www.frixlaw.com/law-library/cases/9761448

## Case

- **Full name:** William C. STONE, Appellant, v. Howard BROWN, Administrator of the Estate of Warren S. McCright, Deceased, Appellee
- **Court:** Court of Appeals of Texas
- **Decided:** July 14, 1981
- **Citations:** 621 S.W.2d 182; 1981 Tex. App. LEXIS 3903
- **Precedential status:** Published
- **Opinion:** Concurrence by Cornelius
- **Judges:** Bleil, Cornelius
- **Cited by:** 9 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9761448

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9761448. Public record. Not legal advice.