Davis v. Morris

• Decision Date: 31 October 1908
• Citation: 114 S.W. 684
• Parties: DAVIS v. MORRIS et al.
• Court: Texas Court of Appeals

114 S.W. 684

DAVIS v. MORRIS et al.

Court of Civil Appeals of Texas.

October 31, 1908.

Appeal from Briscoe County Court; Jno. B. Renfro, Judge.

Action by R. E. Morris and others against W. J. Davis. From a judgment of the county court for plaintiffs, on appeal from a like judgment in justice court, defendant appeals. Reversed, and remanded for new trial.

Mathes & Williams, for appellant. C. D. Wright and Wilson & Wilson, for appellees.

CONNER, C. J.

This suit was instituted by appellees in a justice's court of Briscoe county, where, without written pleadings of either party, they recovered a judgment against appellant, from which he duly appealed to the county court; a like judgment against him being there rendered. In the county court appellant sought to present a written plea containing the general denial and certain facts urged as an estopppel. This the court refused to permit, and also further refused to permit appellant to so plead orally, and for want of pleadings on his part peremptorily instructed the jury to find for appellees, which the jury did, to all of which appellant duly excepted, and here assigns error.

The statute provides that "the pleadings in the justices' courts shall be oral, except where otherwise specially provided; but a brief statement thereof may be noted on the docket." Rev. St. 1895, art. 1603. In the case before us, as appears from the transcript of the proceedings of the justice's court, which was filed in the county court as required by statute, there was no notation of a plea by appellant, and we are left to infer, as the appellees have filed no brief herein, that the county court took the action assigned as error because of some of the provisions of Rev. St. 1895, art. 358, which declares that: "Either party may plead any new matter in the county or district 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 pleadings shall be in writing and filed in the cause before the parties have announced themselves ready for trial."

While found among others relating to proceedings by certiorari, it has been expressly held that the article quoted applies as well to cases taken to the county court by appeal, and that it does not prohibit amended pleadings of the character here sought. It is only new causes of action, set-offs, and...