Bishop v. Mount
| Decision Date | 14 December 1912 |
| Citation | 152 S.W. 442 |
| Parties | BISHOP v. MOUNT. |
| Court | Texas Court of Appeals |
Appeal from Rockwall County Court; H. M. Wade, Judge.
Action by A. H. Mount against W. C. Bishop. From a judgment for plaintiff, defendant appeals. Reformed and affirmed.
W. M. Jones, of Dallas, and I. J. Austin, of Rockwall, for appellant. E. D. Foree, of Rockwall, and A. H. Mount, of Royse City, for appellee.
Appellee sued appellant in the county court of Rockwall county on an account for $765.55. The account was owing by appellant to one F. L. Woodward, and was largely for board and personal service furnished by Woodward to appellant. The account was sold and assigned by Woodward to appellee, who filed suit thereon as indicated. Trial was by jury, and verdict and judgment were for appellee, and the case is here on assigned errors.
The action of the county judge in sustaining a general demurrer to appellant's amended original answer, and in sustaining a special exception to his second amended original answer, is assigned as error. The record nowhere shows that the county judge did sustain the general demurrer and special exception referred to. Hence the rule announced in Daniel v. Daniel, 128 S. W. 469, that "the sustaining of special exceptions to a part of pleading cannot be revised on appeal where the transcript contains no judgment or record entry showing the ruling," applies. The reason of the rule quoted is fully stated in the case cited, and we content ourselves by a reference thereto.
The court did not err in refusing to permit appellant to testify as complained of by the first assignment of error. Appellant pleaded an offset in the court below against appellee's account amounting to $1,230, and asked that said sum be set off against appellee's account to the full amount of same, and that appellant recover from appellee judgment for the difference between their said respective accounts. While it is not necessary, and while we do not desire to commit ourselves to the correctness or incorrectness of the reasons assigned by the county judge in refusing to permit the witness to testify as shown by the record at the same time, we do believe that the refusal to permit the witness to testify to his set-off was not error, for the reason that the set-off was for a sum in excess of the amount of which the county court has jurisdiction. The sum claimed as set-off was $1,230, and judgment was asked by appellant for the excess of his claim over against appellee. The plea of counterclaim or set-off was, in effect, a suit against appellee for $1,230, a sum which exceeds the jurisdiction of the county...
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Cohen v. Hill
...Waples-Platter Gro. Co., 54 Tex. Civ. App. 225, 118 S. W. 232; Dobson v. Zimmerman, 55 Tex. Civ. App. 394, 118 S. W. 236; Bishop v. Mount (Tex. Civ. App.) 152 S. W. 442. It follows, therefore, that the special exceptions to plaintiff's petition must be considered as having been waived by th......
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...authorities: Nichols v. Ellis (Tex. Civ. App.) 246 S. W. 713; Russell v. Saffold (Tex. Civ. App.) 225 S. W. 281; Bishop v. Mount (Tex. Civ. App.) 152 S. W. 442; Cox v. Overton (Tex. Civ. App.) 240 S. W. 642; Wischkaemper v. Allen (Tex. Civ. App.) 221 S. W. 1037; Smith v. Colquitt (Tex. Civ.......
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