Greeley-Burnham Grocery Co. v. Carter

• Decision Date: 06 March 1895
• Citation: 30 S.W. 487
• Parties: GREELEY-BURNHAM GROCERY CO. v. CARTER et al.
• Court: Texas Court of Appeals

30 S.W. 487

GREELEY-BURNHAM GROCERY CO. v. CARTER et al.

Court of Civil Appeals of Texas.

March 6, 1895.

Appeal from Hopkins county court; J. M. Morris, Judge.

Action, aided by attachment, by the Greeley-Burnham Grocery Company against Carter & Lee, to recover a sum evidenced by plaintiff's draft, which was accepted by defendants. From a judgment for defendants, plaintiff appeals. Reversed.

J. H. Dinsmore and Crawford & Keasler, for appellant.

FINLEY, J.

On December 9, 1891, appellant, plaintiff below, filed suit in the county court of Hopkins county against appellees, defendants below, for debt in the sum of $264.55, evidenced by appellant's draft for that sum, accepted by appellees. On the same day appellant filed its affidavit and bond for attachment, and caused a writ of attachment to be issued out of said court against appellees, which said writ of attachment was by the sheriff of Hopkins county, on said December 9, 1891, levied on certain goods, wares, and merchandise, as the property of appellees. On June 2, 1893, appellees filed in the court below their original answer, consisting of general demurrer and general denial. On June 12, 1893, the case was called for trial, and both parties announced ready before the court, and without a jury. The pleadings of the parties then being read, plaintiffs offered in evidence the instrument sued on, to which appellees objected because of variance between the instrument declared on and the allegations in the petition. Appellant then moved the court to grant it permission to withdraw its announcement for the purpose of amending its pleadings, which motion was refused by the court. Whereupon the court postponed a further hearing of the cause to some future day of the term, that the counsel might present authorities upon the admissibility in evidence of the instrument sued on. Afterwards, on June 24, 1893, the same being the last day of the term, the court announced that he was ready to hear authorities and argument of counsel upon the question of evidence above stated. Whereupon appellant's counsel again moved the court to permit it to withdraw its announcement for the purpose of amending its pleadings, which said motion was by the court overruled. The court then sustained defendants' objection to the introduction in evidence of the written instrument sued upon. Appellant renewed its motion to be permitted to withdraw its announcement for the purpose of amending its pleadings so as to obviate appellees...