OH MOTION FOR REHEARING.
Counsel complain of the reversal upon two grounds: First, because the court should have sustained the objections to all the assignments and refused to consider any of them; and second, because the error pointed out in the assignment we sustained was harmless, for the reason that the application for the probate of the will was subject to general demurrer.
We did not point out in the main opinion the objections to the form of the assignments or the manner of their presentation. In deference to the earnestness and .insistence of counsel for appellees, we now pass *342on his objections to the fourth assignment, on which we reversed the judgment of the trial court, which were, that it was not properly copied, and was followed neither by a proposition nor proper statement. All the assignments were copied in the brief seriatim, without pretense of formal presentation by proposition, statement and authority. The fourth assignment was unnecessarily long, and contained much surplusage. When counsel undertook, in a later part of the brief, to present it in due form, a substantial copy, with the surplusage eliminated, was followed by two appropriate propositions, the second of which (brief, page 24) presented the exact point which we sustained. The statement following is unduly prolix, and not unmixed with argument, but, considered as a whole, was not so gross a violation of the rules as to justify us in ignoring a meritorious objection.
Upon the second point urged in the motion for. rehearing our views remain unchanged, notwithstanding the authorities cited in support of the contention. In Gilbert v. Allen (57 Ind., 524) and Davis v. McMillan (41 N. E. Rep., 851), also an Indiana case, it is squarely held that, if a plaintiff lose in the trial court, he can not secure a reversal on appeal, whatever the errors shown, if it be found that his petition was subject to a general demurrer, and this though the point was made for the first time on appeal. To the same effect is a dictum in Mihter v. Durham, an Oregon ease, reported in 11 S. W. Rep., 231. The Alabama case is not in point. The other two cited cases are not accessible to us. The case of McClane v. Belvin (47 Texas, 502) contains expressions apparently in point, but a close reading of the opinion discloses the fact that plaintiff, in aid of a petition totally defective because he had no cause of action upon the state of facts set up, filed an amendment seeking to recover ón a prior transaction which the amendment affirmatively showed was barred by limitation, and the point was raised in time by the defense. The" judgment was properly affirmed, notwithstanding errors, not because the cause of action was defectively stated, but because the facts affirmatively averred, and about which there was no issue, disclosed a complete defense.
There are two classes of petitions against which a general demurrer will prevail. One discloses a state of facts which, under the law, constitute a perfect defense, or otherwise preclude a recovery. The other merely omits some necessary allegation which the pleader has inadvertently left out.. In the first class all errors are immaterial. The court will render judgment upon the facts admitted or averred. In the second class, if the demurrer is not urged in the court below and the plaintiff procures a judgment, the insufficiency of the plea may be raised at any point in the progress of the cause, and, on appeal, the error will be treated as fundamental. But in such a case the Appellate Court in this State does not reverse and render the judgment, but reverses the judgment and remands the cause, that the defect, which is not only apparent, but evidently amendable, may be supplied, and the case retried on its merits.
This case falls in the latter class, for if, indeed, the application is fatally defective because of the. absence of the allegation that the testatrix was of sound mind, it was manifestly an inadvertence of the pleader. That the missing fact is possibly provable is not only not *343negatived by the plea, but proof adduced without objection would have supported the probate of the will had the jury so found. The sufficiency of the application was not questioned in the court below. This court has heretofore declared the law to be as we have stated it. (Hayden v. Kirby, 31 Texas Civ. App., 441, 72 S. W. Rep., 198, in which we followed the case of Moore v. Byers, 49 S. W. Rep., 1104, also a Texas case.) But, had there been no Texas case in point, we would nevertheless have held as we have as an original proposition. We have no doubt of" the correctness of our conclusion. We think it comports with the liberal spirit of our laws controlling the right to amend.
We think the motion should be overruled, and it is so ordered.
Overruled.