Brothers v. Lockett
| Decision Date | 27 October 1885 |
| Docket Number | Case No. 1847. |
| Citation | 64 Tex. 566 |
| Parties | BENDER BROS. v. P. H. LOCKETT. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Marion. Tried below before the Hon. B. T. Estes.
The opinion states the case.
Jas. H. Rogers, for appellants, cited: R. S., art. 2458; Perry v. McKinzie, 4 Tex., 154.
G. T. Todd, for appellee.
This was an appeal from a justice's court to the district court of Marion county. No objection was made in the district court to the manner in which the appeal was taken and perfected. It appears, however, that, after the cause had been regularly docketed in the district court, the papers were lost; and the plaintiff, who had recovered in the justice's court, asked leave of the district judge to substitute. This leave was granted and the cause continued to the next term. Instead of substituting the papers, the plaintiff, at the next term, declined to do so, and requested the court to dismiss the appeal. Whereupon the court ordered that the cause be dismissed from the docket without prejudice to the judgment rendered in the justice's court. It is for the alleged error in making this order that the judgment is brought here for revision. The bill of exceptions taken to the ruling of the court recites that the plaintiff's counsel declined to substitute the lost papers, and requested the court to dismiss the appeal for that reason; and thereupon the court ordered that the cause be dismissed from the court without prejudice to the judgment rendered in the court from whence the appeal was taken. It is, therefore, made apparent that the appeal was not dismissed because of any irregularity in bringing it to the district court, but solely for the reason that the papers had not been substituted.
Unless a case taken from a justice to a district court is dismissed for some illegality or insufficiency in the manner of bringing it up, it stands for trial de novo in the court above. R. S., arts. 311, 312, 317, 1294.
With some exceptions, not important in the present case, the cause is conducted as if originally brought in the district court. The justice's judgment is vacated; and if the plaintiff recovered it, he derives no benefit from that fact in the new trial. He must prove his case, as if he had never proved it before; and he may be dismissed for any cause that would have operated a dismissal had it been commenced in the district court. The judgment below being vacated, it is the duty of the plaintiff to prosecute his suit to...
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Southern Canal Co. v. State Bd. of Water Engineers
...held that the perfection of an appeal from a judgment of a Justice Court to a County Court annuls the Justice Court judgment. Bender Bros. v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395, 396; Harter v. Curry, 101 Tex. 187, 105 S.W. 988. The County Court does not merely review the jud......
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Jenkins v. State
...resulting from the decision of the county court in his favor. Campbell v. Howard, 5 Mass. 376;Curtiss v. Beardsley, 15 Conn. 518;Bender v. Lockett, 64 Tex. 566;Moore v. Jordan, 65 Tex. 395;Lucas v. Dennington, 86 Ill. 88;Rogers v. Hatch, 8 Nev. 38. The docketing of the cause in the district......
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Parker v. Watt
...to adjudicate that the perfecting of an appeal under the statutes operates to avoid the judgment of the justice court. Bender v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395; Tel. Co. v. McKee Bros. (Civ. App.) 135 S. W. 658; Martin v. Butner, 54 Tex. Civ. App. 223, 117 S. W. 442. But......
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Campbell v. Knox
...jurisdiction to adjudicate, the perfecting of an appeal under the statute operates to avoid the judgment of the justice court. Bender Bros. v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395; Harter v. Curry (Tex. Civ. App.) 103 S. W. 445; Id., 101 Tex. 187, 105 S. W. 988; Harper v. Daws......