Simmons v. Brannum, 9476.

• Decision Date: 18 October 1944
• Docket Number: No. 9476.,9476.
• Citation: 182 S.W.2d 1020
• Parties: SIMMONS et al. v. BRANNUM et ux.
• Court: Texas Court of Appeals

Page 1020

182 S.W.2d 1020

SIMMONS et al. v. BRANNUM et ux.

No. 9476.

Court of Civil Appeals of Texas. Austin.

October 18, 1944.

Appeal from County Court at Law, Travis County; D. H. Doom, Judge.

Suit by Joe Simmons and others against J. G. Brannum and wife to vacate judgment for rentals and damages in a forcible entry and detainer suit by J. G. Brannum and wife against Joe Simmons. From an adverse judgment, Joe Simmons and others appeal and prosecuted a writ of error from the judgments awarding rentals and damages. The cases were consolidated on motion of appellants.

Judgments for rentals and damages reversed.

W. T. Williams, of Austin, for appellants.

Geo. S. Dowell and Jno. C. Butler, both of Austin, for appellees.

BLAIR, Justice.

On March 15, 1944, appellees, J. G. Brannum and wife, filed a forcible detainer suit against appellant, Joe Simmons, for possession of a house and lot which he had rented from appellees. Two continuances were agreed to and the case set for April 6, 1944, in the Justice Court, at which time Simmons did not appear either in person or by attorney, and judgment was on that day rendered for appellees for possession, with writ of restitution. No notice of appeal was given by Simmons in open court, as required by Rule 749, Texas Rules of Civil Procedure, but on April 10, 1944, the justice of the peace received an appeal bond through the mail, signed by Simmons as principal, with W. T. Williams and J. F. Hair as sureties, which bond was upon the form prescribed by Rule 750, Texas Rules of Civil Procedure for appealing the case to the County Court. On April 11, 1944, the justice of the peace delivered the transcript of all proceedings in the justice court to the clerk of the County Court at Law of Travis County.

On May 26, 1944, appellees amended their pleadings in the County Court, reasserting their forcible detainer suit, and for the first time sought to recover two items of damages for withholding the premises: (1) $150 as the reasonable rental value of the premises from and after March 21, 1944, at $50 per month; and (2) $50 as damages to the fruit trees and shrubbery caused by appellant permitting his horse and cattle to run upon and feed upon them. A copy of these pleadings was delivered to the attorney of record for appellant in the justice court, and the case was set for trial on May 29, 1944, in the County Court. Appellant did not appear either in person or by attorney, and on that date judgment was rendered for appellees for possession of the premises, with writ of restitution, and for $113.33 as the reasonable rental value of the premises from March 21, 1944, to May 29, 1944, and for $50 as damages to the fruit trees, grass, and shrubbery injured by the live stock. Thereafter, on June 17, 1944, appellants, Simmons, Williams and Hair, filed a suit in said County Court to vacate, cancel and set aside the judgments for the rentals and damages to the trees and shrubbery, which was denied on June 22, 1944, and from which judgment they prosecuted this appeal, and also prosecuted a writ of error from the judgments awarding the damages aforementioned for appellees. These two appeals have been consolidated by this court upon motion of appellants.

The primary contention of appellants is that the court erred in holding that it acquired jurisdiction of the suit for damages for reasonable rentals and damages occurring during the pendency of the appeal from the Justice to the County Court; because no notice was given in open court of such appeal as is required by Rule 749, Texas Rules of...