On Rehearing.
We do not deem it necessary to notice but two grounds urged by appellants for rehearing: (1) They contend that, under Rule 94 of Civil Procedure, the defense of laches must be affirmatively *531pleaded and is not determinable as a question of law on special exception. This contention is overruled. See Callahan v. Giles, 137 Tex. 571, 155 S.W.2d 793, by the Supreme Court.
(2) They also contend that the judgment below should not have been affirmed but lather should have been reversed and the cause remanded to permit them to amend in regard to the issue of laches.
The nature of the case is fully disclosed in our original opinion. Appellants filed an original petition, and first and second amendments thereto; the final pre-trial was had on their second amendment. In answer to each of these pleadings, appellee Pickens urged the defense of laches by special exception, and appel-lee Wilson also urged the same defense by special exception to appellants’ first and second amendments. Seemingly, appellants ignored the presence in the case of the issue of laches, made no reference thereto, except, in their original petition, it was alleged that they first learned of the fraud of which they complained on April 5, 1938, when Pickens filed his final account as administrator of the Culver estate (three years, lacking about a month, before the suit was filed on February 28, 1941). However, in subsequent amendments, this allegation was omitted, and in neither pleading filed by appellants did they show or attempt to show any excuse for their failure to sooner institute the suit; for the first time, in their motion for rehearing, did they bestow any attention upon or evince any concern in regard to the issue of laches, by asking that the case be remanded in order to permit them to amend; but, in this connection, failed to show that, if granted this permission, allegations and proof could and would be made showing a valid excuse for their failure to sooner institute the suit.
We think it well established that a correct judgment will not be reversed and the cause remanded simply to enable a litigant to amend and set up a defense or matter of avoidance that could and should have been previously pleaded. See Archenhold Co. v. Smith, Tex.Civ.App., 218 S.W. 808, 810 (authorities cited); Michigan S. & L. Ass’n v. Attebery, 16 Tex.Civ.App. 222, 42 S.W. 569, 572; Gregory v. Montgomery, 23 Tex.Civ.App., 56 S.W. 231; Ft. W. & D. C. R. Co. v. Tomson, Tex.Civ.App., 250 S.W. 747, 749. It is also well settled that a correct judgment, although based upon an erroneous conclusion of law, will be affirmed. See Payne v. Bracken, 131 Tex. 394, 115 S.W. 2d 903.
The other questions raised in the motion for rehéaring were discussed in our original opinion. The motion for rehearing is overruled.
Overruled.