White v. Johnson, Cook & Murray

STEPHENS, Associate Justice. The failure of appellant to appear and plead in the Justice Court did not deprive him of the right to rely on a general denial in the County Court. Bail way v. Jones, 23 S. W. Bep., 424. The law, in effect', interposed a general denial for him in the Justice Court by requiring plaintiffs to prove their case, notwithstanding his failure to appear. Bev. Stats., art. 1578. No reason is perceived why he should be denied such a defense on appeal in the County Court, where the trial is de nova. This conclusion leads to a reversal of the judgment. *482 Delivered December 13, 1893. In view of another trial, we are urged to decide whether there was error in refusing to entertain appellant’s plea for a judgment over against appellees. Whether it was technically a counter-claim or not is unimportant. It was a cross-action, and sought affirmative relief; and as such was properly rejected, being urged for the first time in the County Court. We are also urged to decide whether the motion made for the first time in the County Court to quash the citation issued by the justice.of the peace was properly overruled. In answer to this, we refer to the following cases which hold that such an issue comes too .late when thus presented: Perry v. Rohde, 20 Texas, 730; Sheldon v. San Antonio, 25 Texas Supp., 177; Irvin v. Davenport, 84 Texas, 512; 1 W. & W. C. C., sees. 39, 459. If-taken in time; we are not prepared to hold, with appellant’s contention, that a citation issued by a justice of the peace must require the defendant to appear at the next regular term of the Justice Court. Article 1443 of the Revised Statutes contains the provision, that all writs and process, shall be made returnable on the first day of the next term of court; and article 1215 contains a like provision as to the requisites of a citation. These articles are both found under “Title 29— Courts, District and County; Practice In.” In articles 1568 and 1570, under “ Title 32 — Courts, Justices’,” prescribing the requisites of process and citation in such courts, the word “ next” is substituted by the word “ some.” These articles, with that exception, are almost identical with articles .1215 and 1443. We think the codifiers must have made this substitution on purpose, and not without a sufficient reason. The construction contended for by appellant, in view of the law requiring Justice Courts to be held once every month, would prove very inconvenient in practice, especially in obtaining service by publication. We are not disposed to exact of a justice of the peace a better writ than the statute, enacted for his guidance, in terms requires. For the reason first above stated, the judgment must be reversed and the cause remanded for a new trial. Reversed and remanded.