Urban v. Field

• Decision Date: 04 December 1939
• Docket Number: No. 10637.,10637.
• Parties: URBAN v. FIELD et al.
• Court: Texas Court of Appeals

137 S.W.2d 137

URBAN v. FIELD et al.

No. 10637.

Court of Civil Appeals of Texas. San Antonio.

December 4, 1939.

On the Merits January 17, 1940.

Rehearing Granted February 14, 1940.

Motion for Rehearing Overruled March 6, 1940.

Appeal from Victoria County Court; J. J. Woodhouse, Judge.

Action by Lula Field and her husband, pro forma, against Louis Urban, to recover damages to automobile, which was used in taxicab business, and for loss of time to taxicab business. From a judgment in the county court in favor of the plaintiffs after appeal from a judgment of a justice court, the defendant appeals.

Judgment reversed and cause remanded.

E. L. Dunlap, of Victoria, for appellant.

Ralph W. Wofford and W. L. Edwards, both of Victoria, for appellees.

SMITH, Chief Justice.

This is an attempted appeal from a judgment rendered in a county court in a case originating in a justice of the peace court.

The record in this Court does not include a transcript of the record made, or any of the proceedings had, or papers filed in the justice of the peace court. Specifically, it does not include the pleadings filed, the judgment rendered, or any order made in the justice of the peace court, or notice of appeal, or appeal bond, if any, filed therein. In short, the transcript of the record filed in this Court does not disclose any fact that could give the county court jurisdiction of the cause (3 Tex.Jur. p. 398, § 284), and so long as the county court is not shown to have acquired jurisdiction, this Court can acquire none.

The appeal will be dismissed, unless appellant, on or before December 15, 1939, tenders a record showing evidence of jurisdiction, together with motion for leave to file same herein, as a part of the record. 3 Tex.Jur. p. 757, § 541.

On the Merits.

Appellant having supplemented the transcript by showing jurisdiction in the County Court, the appeal will be considered on the merits.

The suit originated in a justice of the peace court upon the petition of Mrs. Lula Field, alleged to be "joined herein formally by her husband, R. M. Field." It was alleged that Mrs. Field was a resident of Victoria County and her husband a resident of Nueces County; that she was the owner of a certain automobile, which she used in her taxicab business in the City of Victoria; that defendant, Urban, owned and operated a truck, and that through his negligence said truck collided with Mrs. Field's said car, damaging it. Mrs. Field prayed for judgment against Urban for damages to the car and for loss of time to her taxicab business, and judgment was rendered in favor of Mrs. Field and her husband, jointly. Urban has appealed. The parties will be referred to as plaintiffs and defendant, respectively, as in the trial court.

It appeared from plaintiff's petition that she was a married woman with a living husband, but there were no allegations in the petition that her husband, who was joined, pro forma, as plaintiff, had abandoned her, or had refused to join her as a real party plaintiff. She alleged that the damaged automobile was her property, and that the damages complained of were sustained by her and the business she was operating. The record discloses, affirmatively, that plaintiff's written petition was not supplemented by oral pleadings, and therefore the rights and remedies of plaintiff must be tested solely by allegations in the written pleadings, without aid from the usual presumption, available in cases originating in justice of the peace courts, that written pleadings have been supplemented by oral pleadings sufficient to support the judgments rendered in such cases.

Defendant urged the general demurrer to plaintiff's written petition, but the trial judge overruled the demurrer, and this appeal turns upon the propriety of that ruling. We are of the opinion that, under well established rules in this State, ...