Texas & New Orleans Railway Co. v. Hook

GARRETT, Chief Justice. The appellee brought suit in a justice court to recover of the appellant damages for the negligent killing of a dog of the value of $19.95. Among other pleas the defendant pleaded in reconvention against the plaintiff damages in the sum of $135, in that the defendant had given the dog to the plaintiff, and that the plain *326 tiff had contracted and agreed with the defendant that he would keep that and other dogs belonging to plaintiff off defendant’s railroad track, but that the plaintiff had permitted said dog to go upon the track of defendant, and one of defendant’s engines was run against it, and on the attempt to stop the engine to prevent running over the dog by the sudden reversal of the lever certain machinery of the engine was broken, to defendant’s damage as above stated. A trial was had in the justice court, and judgment was rendered in favor of the plaintiff for $19.95. The defendant took the case to the county court by certiorari. It appeared from the petition for certiorari that an appeal bond was tendered to the justice of the peace, but that he declined to entertain an appeal. The petition for certiorari set out the evidence upon the trial in the justice court, from which it appeared that the defendant offered no evidence in support of its plea in reconvention. The county judge granted the certiorari, and tried the case upon its'merits and rendered judgment in favor of the plaintiff for $19.95, the amount sued for. The defendant has appealed to this court, and seeks to reverse the judgment of the court below because the evidence failed to show that the dog Was negligently killed. It offered no evidence at the trial in the' county court in support of its plea in reconvention. The effort to confer jurisdiction of a case on appeal by the pleading of such a preposterous defense is trifling with the court. No evidence having been offered in support of the plea, that was an abandonment thereof, even if it had any merit in it. Having been abandoned," its averments could confer no jurisdiction on either this or the county-court. Bledsoe v. Railway, 6 Texas Civ. App., 280; Railway v. Perkins, 44 S. W. Rep., 547; Schulz v. Tessman, 92 Texas, 488. The judgment of the court below will be reversed, and judgment will be here rendered dismissing the petition for certiorari to the county court, and against the appellant for all the costs of this court and of the court below. Reversed and rendered.