Porter v. Russek

• Decision Date: 09 January 1895
• Citation: 29 S.W. 72
• Parties: PORTER v. RUSSEK.
• Court: Texas Court of Appeals

29 S.W. 72

PORTER v. RUSSEK.

Court of Civil Appeals of Texas.

January 9, 1895.

Appeal from Live Oak county court; C. C. Cox, Judge.

Action by Frank Russek against L. T. Porter to recover a sum overpaid for pasturage of cattle. Judgment was rendered for plaintiff, and defendant appeals. Affirmed.

F. G. Chambliss, for appellant.

JAMES, C. J.

The case originated in the justice's court. In the county court motion was made by appellant to dismiss the appeal because the appeal bond was not in double the amount of the judgment appealed from. The judgment was for costs only, and the bill of costs attending the transcript amounted to $12.55, and the bond was for $25, a deficiency of 10 cents. We have looked to the justice's transcript, and find that it clearly appears that there was but one citation issued, and the bill of costs contains the charge of $1 for such citation. The statute allows but 50 cents for this item. Rev. St. art. 2398. The justice probably issued also a copy of the citation, and considered that he was entitled to make the charge for both. It has been expressly decided that this cannot be done. Hallman v. Campbell, 57 Tex. 54. The legislature has seen proper to change this rule in respect to clerks of the district court. Laws 1893, p. 170. This palpable error in the bill of costs ought not to prevail against the jurisdiction of the county court. It clearly appearing from the record that the bond was for more than double the costs that had accrued, the motion was properly overruled.

The second assignment of error is not well taken. The justice's record shows affirmatively that there were pleadings of both parties in that court. It does not appear that there were no pleadings in the county court. The cases cited by appellant show that, under these circumstances, this court will presume that there were pleadings to support the judgment. Maass v. Solinsky, 67 Tex. 290, 3 S. W. 289; Moore v. Jordan, 67 Tex. 394, 3 S. W. 317. It appears from the recitals of the justice's judgment that the amount pleaded and claimed by the plaintiff at the trial was the sum of $125, an amount overpaid in November, 1892, for pasturage of cattle. Nothing to the contrary appearing, it will be presumed that the pleading in the county court was the same. The verdict and judgment in that court on August 7, 1894, was for $128.32. The point made is that no more than $125 was asked for, and there is no support for the verdict as to the excess over $125. Interest...