Roberts v. McCamant

• Decision Date: 25 May 1888
• Citation: 8 S.W. 543
• Parties: ROBERTS v. McCAMANT.
• Court: Texas Supreme Court

8 S.W. 543

ROBERTS v. McCAMANT.

Supreme Court of Texas.

May 25, 1888.

Appeal from district court, Jones county.

Suit to enjoin the collection of an execution issued from a justice's court, brought by W. E. Roberts against A. S. McCamant. Judgment for defendant. Plaintiff appeals. Rev. St. Tex. 1879, art. 1638, relating to appeals from justices' courts, is as follows: "Any party to a final judgment in the justice's court may appeal therefrom to the county court, where such judgment, or the amount in controversy, shall exceed twenty dollars, exclusive of costs, and in such other cases as may be expressly provided by law."

Jones & Cunningham, for appellant.

GAINES, J.

The appellant brought this suit in the court below to enjoin the collection of an execution issued from the justice's court upon a judgment in favor of appellee McCamant against him. A preliminary injunction was granted, and the writ issued and served, but, upon final hearing, exceptions to the petition were sustained, the injunction dissolved, and the suit dismissed. The petition alleged that McCamant brought a suit in the justice's court against Roberts, the plaintiff in this suit, to recover the sum of $13, to which the latter pleaded a counter-claim of $22; that upon the trial in that court McCamant obtained a judgment for the amount of his claim, from which Roberts perfected an appeal to the county court, but that the county court dismissed the appeal for the want of jurisdiction. It is further averred that thereafter the justice issued execution upon the judgment for the amount originally recovered by McCamant, and for all costs incurred in the suit both in the justice's court and in the county court.

It is assigned that the court erred in sustaining the exceptions to the petition. In support of his assignment appellant insists that, the amount of his counter-claim being over $20, an appeal lay to the county court, and that, an appeal having been perfected, the judgment of the justice's court was thereby vacated. It is believed that these propositions are sound. It is held that when an appeal is properly taken from the judgment of a justice's court, that it operates to avoid the judgment, and that a subsequent voluntary dismissal in the county court does not restore it to validity. Bender v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395. If, however, it be a case which cannot be appealed, or if the law for perfecting appeals be not complied with, we are of opinion that...