On Motion for Rehearing.
As, in the original opinion, this court held that laches on the part of appellants had destroyed their right to take up the prosecution of the case brought by the executor of the Shafer estate, the other points in the case jvere not considered. On granting a rehearing this court again failed to discuss the *202other points, and this want of action is urged as ground for rehearing.
[3] It is insisted that the suit was properly dismissed, not only ‘on the ground of laches on the part of appellants in the prosecution of the suit, but because a special exception had been sustained to the petition on the ground that the. account was not itemized and appellants had not amended. To the petition was attached a report of an auditor appointed by the court to audit the books of appellee. The latter had kept the accounts, the books were in Ms possession, and he was in a better position to obtain the dates than were appellants. If he desired to plead limitations to the account, or any items therein, he had the information upon which to found his plea, and there was no necessity for encumbering the record- with a long list of items, which had been recorded by appellee. Frosh v. Swett, 2 Tex. 485; Caldwell v. Haley, 3 Tex. 317. The leading case has often been cited in Texas and never questioned.
It is urged that this court refused to decide on the action of the lower court in overruling a special exception, but does not disclose what the special exception contained, nor in any way identify it. We have failed to discover any exception, however, which was improperly overruled.
The motion for rehearing is overruled.