Curry v. Terrell

Opinion by Willson, J. § 239. County court; pleading new matter in, on appeals from justices’ courts. Where a suit is instituted in justice’s court, and after judgment therein rendered is appealed or taken to the county court by certiorari, the parties will not be permitted to plead causes of action or defenses which were not pleaded in the justice’s court. This was the rule aforetime, both by statutory provisions and as held by the courts. [Hart. Dig. art. 714; Pas. Dig. art. 1456; Titus v. Latimer, 5 Tex. 433; Thomas v. The State, 9 Tex. 324.] The rule was held applicable both to appeals and certioraris. [O’Brien v. Dunn, 5 Tex. 570; Clark v. Snow, 24 Tex. 242.] This rule has not been changed by legislative enactments. Statutes hearing upon the subject are arts. 1292, 316 and 317, Rev. Stats. § 240. Appeal and certiorari. Appeal and certiorari are but different modes of removing a case from a justice’s to a county court for a trial de novo. The proceedings are analogous, and the provisions of the law governing the one should govern the other where there is no' conflict. With reference to the practice in certiorari cases, it is expressly provided that “ either party may plead any new matter in the county court which was not presented in the court below; but no new cause of action shall be set up by plaintiff, nor shall any set-off or counterclaim be set up by defendant which was not pleaded in the court below,” etc. [Rev. Stats, art. 316.] This rule is applicable also to appeals. Reversed and remanded.