Perry v. Another
| Decision Date | 31 December 1849 |
| Citation | 4 Tex. 154 |
| Parties | PERRY, ADM'R, v. MCKINZIE AND ANOTHER. |
| Court | Texas Supreme Court |
In appeals, the parties stand as they did before the justice, not as appellant and appellee, but as plaintiff and defendant.
Objection cannot be heard in the District Court to the service of the process of the Justice's Court; nor can the defendant set up any defense that does not go to the merits of the action.
Much indulgence is extended to the proceedings of Justices' Courts; and if they have not operated as an injury, they will be sustained. (Note 31.)
Appeal from Colorado.
Rivers, for appellant.
Wilson & Quinan, for appellee.
This suit was commenced in a Justice's Court on a note given by the appellees to the appellant. The justice gave judgment for the plaintiff, and the case was taken by appeal to the District Court. The proceedings in the District Court are not easily to be understood. It appears that the appeal was dismissed and costs given against the appellee. Now, if the parties stood as appellants and appellee in the court, it would appear that the defendants were the appellants, and the plaintiff (who had obtained the judgment in the Justice's Court) appellee, and the defendants had appealed from that judgment. Then it would be an anomaly in jurisprudence to dismiss the appeal and tax the party appellee with costs of an appeal that had been taken against him. This, however, can be seen from the subsequent proceedings to have been an awkward and an erroneous entry made by the clerk. In cases of appeal from a justice's judgment, the parties stand not as appellant and appellee, but as plaintiff and defendant, precisely in the same situation that they stood in the Justice's Court; and the case should have been so docketed. It is a matter of surprise that the District Judge should have permitted the records to have presented so much irregularity and confusion. The bill of exceptions alone in this case can afford us any knowledge of what was done, intended to be done, and the grounds on which the judge acted. It seems the point the judge wished to get at in the case was the defective service of the summons issued from the Justice's Court. It appears to have been served by the officer by reading it to them. If the judge was of the opinion that this objection was fatal to the suit in the District Court, he could have ordered the suit to be dismissed at the cost of the plaintiff, without presenting the absurdity that is presented in the record. The terms appellants and appellee should not have found a place on his record. The case should have been docketed as plaintiff and d...
To continue reading
Request your trial
-
Crutcher v. Wolfe
...for the correction of errors of the justice court, but entertains the case for the purpose of a new trial on its merits. Perry v. McKinzie et al., 4 Tex. 154; I. & G. N. Ry. Co. v. Philips, 63 Tex. 592; Sheldon v. City of San Antonio, 25 Tex. Supp. From his findings of fact and conclusions ......
-
Pullin v. Parrish
...be interpreted to mean that a verdict would suffice as a judgment. Davis v. Pinckney, 20 Tex. 340, 341; Clay v. Clay, 7 Tex. 250; Perry v. McKinzie, 4 Tex. 154. See, also, Wahrenberger v. Horan, 18 Tex. 57. In Hollinger v. Hancock, Tex.Civ.App., 152 S.W. 238, Mr. Justice Fly observed that t......
-
Doyle v. Glasscock
...in which an account is drawn up, and presented before a justice of the peace, will not prejudice the case, as disclosed by the evidence. 4 Tex. 154;7 Tex. 250;18 Tex. 57, 237, 392;20 Tex. 340. Payment of a voluntary subscription, on the faith of which expense has been incurred, or legal lia......
-
Davis v. Pinckney
...where a case is tried by a jury in a justice's court, the entry of the verdict on the justice's docket is a sufficient entry of judgment. 4 Tex. 154;7 Tex. 250;18 Tex. 57, 237, 392;24 Tex. 200. Error from Bastrop. Tried below before the Hon. A. W. Terrell. Suit by William E. Pinckney agains......