City of Dallas v. McAllister

• Decision Date: 13 March 1895
• Citation: City of Dallas v. McAllister, 30 S.W. 452 (Tex. App. 1895)
• Parties: CITY OF DALLAS v. McALLISTER.
• Court: Texas Court of Appeals

30 S.W. 452

CITY OF DALLAS v. McALLISTER.

Court of Civil Appeals of Texas.

March 13, 1895.

Appeal from Dallas county court; T. F. Nash, Judge.

Action by J. J. McAllister against the city of Dallas. From a judgment of the county court affirming a judgment of the justice court for plaintiff, defendant appeals. Reversed.

A. P. Wozencraft and T. A. Work, for appellant.

LIGHTFOOT, C. J.

The statement of the case by appellant is concurred in by appellee and is adopted, as follows: Appellee, J. J. McAllister, filed this suit in the justice's court precinct No. 1, Dallas county, Tex., on September 5, 1892, on an account of $50 for damages to a mule; $143.75, damages to a milk wagon; and $6.25, loss of milk, — total $200, said damages alleged to have been caused by carelessness and negligence of said city of Dallas by leaving a sewer on one of the streets open and in a dangerous condition. The defendant, city of Dallas (appellant herein), answered in the justice's court by general demurrer and general denial, September 14, 1892. On January 14, 1893, in said justice's court, said J. J. McAllister obtained a judgment against the city of Dallas for $131, together with all costs of suit, from which judgment said city of Dallas appealed to the county court of Dallas county, said suit being filed in the county court on January 28, 1893. On March 28, 1893, appellant herein filed its first amended original answer in the county court, setting up section 165 of its city charter, approved March 13, 1889, as a bar to plaintiff's cause of action, which amendment was stricken out on motion of said J. J. McAllister on March 30, 1893, for the reason that it set up new matter as a defense not pleaded in the justice's court; and on the same day (March 30, 1893) judgment was rendered in the county court in favor of J. J. McAllister for $154.20 and all costs of suit, to which judgment of the court defendant then and there excepted, and in open court gave notice of appeal, and in due time filed statement of facts and assigned errors, and now presents this case before this court by appeal.

The assignments presented by appellant all raise practically but one question, and that is whether, on an appeal from the justice of the peace court to the county court, new matter can be set up in the latter court which was not pleaded in the former. For a number of years there was much conflict of authority in this state upon the question, and at one time the negative of the question was held by the old court of appeals in a line of decisions. Rush v. Lester, 2 Willson, Civ. Cas. Ct. App. § 442; Harrison v. Railway Co. (Tex. Ct. App.) 15 S. W. 643, and authorities there cited. That court seems to have reached its conclusion by holding that article 316, Rev. St., applied to cases brought up from the court of a justice of the peace by certiorari, and not to cases brought up by appeal. Article 316 provides as follows: "Either party may plead any new matter in the county court which was not presented in the court below; but no new cause of action shall be set up by the plaintiff, nor shall any set-off or counterclaim be set up by the defendant which was not pleaded in the court below; and in all such cases the pleading shall be in writing and filed in the cause before the parties have announced themselves ready for trial." This statute was intended as a limitation upon the right to set up new matter, and if it does not apply to an appeal, the trial being de novo, there seems to be no limitation upon the extent to which new matter may be set up. Certiorari is only another method of...