Watson v. Corley

• Decision Date: 25 November 1920
• Docket Number: (No. 2327.)
• Citation: 226 S.W. 481
• Parties: WATSON v. CORLEY.
• Court: Texas Court of Appeals

Page 481

226 S.W. 481

WATSON v. CORLEY.

(No. 2327.)

Court of Civil Appeals of Texas. Texarkana.

November 25, 1920.

Appeal from Hopkins County Court; T. J. Tucker, Judge.

Suit by James Corley against J. M. Watson, begun in the justice court. Judgment for plaintiff for part of the claim, and plaintiff appealed to the county court, where there was a judgment for plaintiff for a larger sum, and defendant appeals. Reversed and remanded.

Appellee's suit against appellant was commenced in a justice court. It was to recover $96.25 which he claimed appellant owed him as rent for certain land. At the time he commenced the suit, appellee procured the issuance of a distress warrant, which was levied on property belonging to appellant. The trial in the justice court resulted in a judgment for appellee for certain corn grown on the rented premises, worth about $40. Appellee was not satisfied with the judgment and prosecuted an appeal to the county court, where he sought a recovery of the $96.25, and where for the first time he also sought a recovery of $5.10 as the value, he claimed, of certain seed cane he averred he was entitled to as rent.

In his answer in the county court appellant denied that he owed appellee anything, and by way of a cross-action sought, as he did in the justice court, to recover $6 which he alleged appellee owed him for work and $100 as damages he alleged he suffered as a result of the levy of the distress warrant on his property. The trial in the county court resulted in a judgment in appellee's favor for $86.35 and foreclosing the lien he claimed on the property levied on by virtue of the distress warrant.

Crane & Crane, of Sulphur Springs, for appellant.

Ramey & Sellers, of Sulphur Springs, for appellee.

WILLSON, C. J. (after stating the facts as above).

The trial court did not err when he overruled appellant's motion to dismiss the appeal from the justice court on the ground that the judgment of the latter court was not a final one because it did not in terms dispose of appellant's cross-action against appellee. It has been held in conformity to appellant's contention that the judgment of a justice court which does not dispose of defendant's counterclaim for damages is not a final one (Carothers v. Holloman, 33 Tex. Civ. App. 131, 75 S. W. 1084; Harper v. Dawson, 167 S. W. 311), but the Supreme Court determined to the contrary in Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161. And see Parker v. Emerson, 176 S. W. 146; Bank v. Herrell, 190 S. W. 797; Pitt v. Gilbert, 190 S. W. 1157; Supply Co. v. Mining Co., 203 S. W. 68. Nor did the trial court err when he overruled appellant's other motion to dismiss the appeal, on the ground that appellee did not file an appeal bond in the county court within a time specified. The judgment of the justice court was in appellee's favor except for costs, and he had a right to appeal without filing a bond. Ry. Co. v. Stock Farm, 91 Tex. 628, 45 S. W. 375; Willett v. Herrin, 161 S. W. 26. And we do not think he erred when he overruled appellant's motion to strike out appellee's amendment to his account filed after the appeal was perfected to the county court, by which for the first time he sought a recovery against appellant of $5.70 on account of seed ribbon cane. The suit was on the contract covering the renting of the land, and the $5.70 was the value of seed cane appellee claimed to be entitled to as rent under that contract. Therefore we think the amendment did not set up a new cause of action, but was within the rule applied in Von Boeckmann v. Loepp, 73 S. W. 849; City of Van Alstyne v. Morrison, 33 Tex. Civ. App. 670, 77 S. W. 655, and...