On Motion for Rehearing.
Appellant calls to our attention Detroit Fidelity & Surety Co. v. State of Texas (Tex. Com. App.) 76 S.W.(2d) 492, 493, holding that the issue of prematurity of that suit need not be pleaded in abatement, and citing Austin Bros. Bridge Co. v. Love (Tex. Com. App.) 34 S.W.(2d) 574, as so holding. The order of the Supreme Court in Austin Bros. Bridge Co. v. Love, reversed the Court of Civil Appeals [5 S.W.(2d) 570] when that latter court held the matter must be raised in abatement, but the opinion makes no reference to the issue of abatement. The opinion in Detroit Fidelity & Surety Co. v. Texas, supra, is likewise not definite as to whether the rule is now established in Texas, that if the evidence on the merits discloses that the suit was prematurely filed, and that the right of action has not matured at the time of trial, the suit must be dismissed. If so, then the office of the plea in abatement is greatly reduced from its functions as set out in the earlier decisions of our Supreme Court, which held that, where the issue made goes to the action itself, the plea must be in abatement, or the defense is waived. Humphrey v. Nat’l Fire Ins. Co. (Tex. Com. App.) 231 S. W. 750; Schauer v. Beitels, Ex'r, 92 Tex. 601, 50 S. W. 931; Aldridge v. Webb, 92 Tex. 122, 46 S. W. 224; Graham v. McCarty, 69 Tex. 323; 7 S. W. 342; Allen v. Read, 66 Tex. 13, 17 S. W. 115; Wallace v. First National Bank, 95 Tex. 103, 65 S. W. 180; Drake v. Brander, 8 Tex. 351. That portion of the opinion in the Detroit Case, supra, which holds the defense was not waived was dictum to the decision therein, but it plainly says that the decision in the Austin Bridge Co. v. Love, supra, was intended to hold that the defense of prematurity was not waived by the failure to plead in abatement. Those cases were suits against the surety upon a statutory contractor’s bond, given for a builder of public highways. It may be that some distinction can be drawn by saying that, until the commissioners’ court determines the amount due by the county under the contract, there is not even an inchoate cause of action on the bond, and that the suit is not, strictly speaking, premature, but rather that no cause of action exists even in fu-turo. At any rate, whatever the reasoning, it applies with equal foree to Glazier for if he never collects the notes involved in this suit he is never liable for the moneys collected.
We are not required by the facts in the case to go further than to say that in deference to these two cases by the Commission of Appeals we hold that the special exception of Glazier to Tilton’s petition, calling the court’s attention to the fact that there were no allegations in that petition alleging that Glazier had collected any money on the notes, should have been sustained.
The judgment heretofore rendered by this court in this cause is set aside. Since the action against the Swensondale Petroleum Corporation is so closely interwoven with Glazier’s ease, we think justice is best sub-served by reversing and remanding the entire case, and it is so ordered.