Watson v. Corley

WILLSON, C. J. (after stating the facts as above). [1-3] 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 *482 Alstyne v. Morrison, 33 Tex. Civ. App. 670, 77 S. W. 655, and like cases. But we think the trial court did err: [4] 1. When he. overruled appellant’s motion to quash the.distress proceedings; for it did not appear from the affidavit for the warrant, and it must to have entitled appellee to the writ, either that the rent claimed was due or that appellant was about to remove or to remove his property from the rented premises. Vernon’s Statutes, art. 5479; Jackson v. Corley, 30 Tex. Civ. App. 417, 70 S. W. 570. [5] 2. When he overruled appellant’s, request that he “submit the cause upon special issues raised by the pleadings and the evidence in the case.” A trial court has a right to refuse such a request only when “the nature of the suit is such that it cannot; be determined on the submission of special issues.” Vernon’s Statutes, art. 1984a. It is plain enough, we think, that this suit is not of that nature. Shaw v. Garrison, 174 S. W. 942; Klyce v. Gundlach, 193 S. W. 1092; Petroleum Co. v. Dinwiddle, 168 S. W. 439; Construction Co. v. Lopez, 172 S. W. 987; Dorsey v. Cogdell, 210 S. W. 303; Jackson v. Martin, 218 S. W. 4. Other questions. presented by the assignments are so unlikely to arise on another trial, in view of the rulings made, that we think it is not worth while to determine them. The judgment is reversed, and the cause is remanded for a new trial. Footnotes [1] <&wkey;>For other cases see same topic and KEV-IJUMBBR in all Key-Numbered Digests and Index®»