Perry v. Luettich, 3297.

• Court: Texas Court of Appeals
• Writing for the Court: Pelphrey
• Citation: Perry v. Luettich, 93 S.W.2d 790 (Tex. App. 1936)
• Decision Date: 09 April 1936
• Docket Number: No. 3297.,3297.
• Parties: PERRY et al. v. LUETTICH.

93 S.W.2d 790

PERRY et al. v. LUETTICH.

No. 3297.

Court of Civil Appeals of Texas. El Paso.

April 9, 1936.

Rehearing Denied May 7, 1936.

Appeal from County Court at Law, El Paso County; John M. Worrell, Judge.

Suit by Mary Perry and husband against Al. Luettich, which was instituted in justice's court. From a judgment of the county court to which the case was appealed, in favor of the defendant, plaintiffs appeal.

Affirmed.

C. W. Croom, of El Paso, for appellants.

David J. Smith, of El Paso, for appellee.

PELPHREY, Chief Justice.

Appellants, as owners of certain real property on the North Loop road in El Paso county, Tex., instituted a suit in forcible entry and detainer against appellee in justice's court. Judgment was there rendered in favor of appellee, and appellants prosecuted an appeal to the El Paso county court at law, where judgment was rendered non obstante veredicto also in favor of appellee. In this judgment was included the sum of $200 as reasonable expenses of defending the suit in the county court at law.

From such judgment, this appeal has been perfected.

While appellants complain because the trial court refused their motion for judgment based on the jury's findings, because the court rendered judgment in favor of appellee, non obstante veredicto, and because the court awarded appellee the aforesaid $200 expenses for defending the suit, they have briefed only the last question.

Among the statutory provisions governing forcible entry and detainer suits, we find the following: "On the trial of the cause in the county court the appellee shall be permitted to prove the damages for withholding the possession of the premises from the appellee during the pendency of the appeal and the reasonable expenses of the appellee in prosecuting or defending the cause in the county court; and, if the possession of the premises be not adjudged to the appellant said court shall render judgment also in favor of the appellee and against said appellant and the sureties on his bond for the damages proven and all costs." Vernon's Ann.Civ. St. art. 3990.

Appellant contends that the right to recover the expenses of prosecuting or defending the cause in the county court under the above article arises only where the appellant withholds the possession of the premises during the pendency of the appeal, and, therefore, appellee, having been in possession of the premises at all times, was not entitled to recover his attorney's fees.

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