Dunlap v. Broyles
| Decision Date | 04 November 1911 |
| Citation | 141 S.W. 289 |
| Parties | DUNLAP v. BROYLES. |
| Court | Texas Court of Appeals |
Appeal from Deaf Smith County Court; W. H. Russell, Judge.
Action by W. G. Broyles against Eli Dunlap. There was a judgment for plaintiff in the justice court, and on appeal to the county court judgment was again rendered for plaintiff, from which defendant appeals. Affirmed.
Barcus & North, for appellant. Knight & Slaton, for appellee.
This cause originated in the justice court of precinct No. 1, Deaf Smith county, by Broyles suing Dunlap on a moneyed demand, the amended memoranda or statement of the cause of action filed in the justice court on August 22, 1910, showing that the claim was for certain interest on outstanding indebtedness which had been paid by Broyles and which Dunlap had agreed to pay, together with accrued interest on the sums so paid, aggregating $150. The record does not show when the judgment was rendered in the justice court, and the only way shown by the record how the case found its way into the county court is found in a statement in the judgment rendered against Dunlap and his sureties on his appeal bond (evidently the appeal bond given by Dunlap in appealing the case from the justice to the county court). A trial was had in the county court of Deaf Smith county on the merits of the cause before the court without a jury on October 13, 1910, and resulted in favor of Broyles and against Dunlap and his sureties on an appeal bond, L. E. Cobb and W. L. Broyles, for the sum of $125.60, with 6 per cent. interest thereon from date of judgment, from which judgment Dunlap alone has appealed to this court. While no question is raised as to the jurisdiction of this court by either party to the appeal, in view of the fact that the record shows affirmatively that the amount in controversy was not one over which the county court had original jurisdiction, and no copy of a judgment rendered in the justice court, nor a copy of appeal bond perfecting an appeal from a judgment in the justice court to the county court, being found in either the transcript or statement of facts, and there being nothing in the record showing that the county court had acquired jurisdiction of the cause except the statement found in its judgment hereinbefore referred to, we at first doubted our jurisdiction to dispose of the cause on its merits; but under the authority and line of reasoning found in the cases of Heath v. Garrett, 50 Tex. 264, and Shiner v. Shiner, 14 Tex. Civ. App. 489, 40 S. W. 439, we have reached the conclusion that it is our duty to dispose of the appeal on its merits. The case is not briefed in this court by appellee but appellant has briefed three assignments of error which we will dispose of in their order.
Under his first assignment, contention is made by appellant that the court below erred in overruling his special exception to appellee's cause of action as stated, in that said cause of action, as stated, did not sufficiently put appellant on notice as to the...
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