English, President: Daniel P. Morse, doing business as Morse & Rogers, brought an action for the recovery of money before T. M. Demoss, a justice of the peace of Taylor county, on March 13th, 1896, against Emery L. Rector, surviving- partner of the firm of W. A. Rector and E. L. Rector, partners as Rector & Co., and Joel A. Rector and S. B. Ayer, in which the plaintiff demanded judgment for one hundred and thirteen dollars and two cents, with interests and costs according to law.
No return was indorsed on the first summons. A second summons was issued, dated March 21, 1896, executed on the same day. On the 14th day of March, 1896, the defendant Joel A. Rector appeared before the justice, sug-gested the nonresidence of the plaintiff, and demanded security for costs. He also demanded an itemized statement of the cause of action. On March 21, 1896, the cause was continued on the affidavit of E. L., Rector. On March 28, 1896, the cause was again continued on the affidavit of S. B. Ayer.
The copy of a plea signed by S. B. Ayer, defendant, dated April 4, 1896, appears to have been copied in the transcript of said justice, in which said Ayer, for plea and answer to said action, said that the plaintiff ought not to have or maintain his said action against him and the other defendants, because, as was shown by the record therein filed by the plaintiff, there already existed a judgment against him and his said co-defendants for said cause of action therein sued for, which judgment had not been appealed from, set aside, or annulled, but was then in full force and effect.
This plea, however, does not appear to have been filed by any order or any reference thereto made by the justice in his docket as being so filed; neither was any other plea filed by the defendant in said action.
No complaint appears to have been filed by the plaintiff in the case, nor does it appear 204 what evidence was offered in support of the plaintiff’s claim. -It is true, the transcript of the justice shows that on the 7th of April, 1896, a trial was had, and, upon consideration of the evidence before said justice, judgment was granted the plaintiff against the defendants for the sum of one hundred and sixteen dollars and eighty-six cents, with interest thereon till paid, and costs; yet it nowhere appears in said transcript upon what claim said suit was predicated, or what evidence was offered in support of any claim.
Although the transcript of the justice is headed by the words, “Justice’s Transcript of the Proceedings on Stay Bond,” we cannot say whether these words were written by the j ustice or by the clerk in making out the record, nor do we regard it material. It nowhere appears that any stay bond was made the foundation of this action, or that any evidence was before the justice in reference thereto; and, in the absence of the proper plea, no evidence could have been heard as to the effect of the stay bond.
It is true, the defendant demanded an itemized statement of the cause of action, but no such statement appears to have been tiled in pursuance of said demand.
Section 50 of chapter 50 of the Code provides for the rules of proceeding, before a justice as follows: “The pleadings in these courts are first, the complaint by the plaintiff, second, the answer of the defendant.” It is further provided in the same section that: “The pleadings may be oral or in writing; if oral, the substance of them shall be entered by the justice in his docket; if in writing, they shall be filed by him, and a reference to them be made in the docket; in either case if the parties appear and the defendant make defence, they shall be made upon the return day of the summons unless good cause be shown to the contrary.” In the case before us, however, there was no complaint, no answer, no pleadings made up, and no issue to be tried, yet it appears from the transcript of said justice’s docket that on the 7th of April, 1896, the plaintiff and defendants came by their attorneys, and a trial was had, and upon consideration of the evidence before the justice judgment was granted the plaintiff against the defendants for the sum of one hundred and sixteen dollars and eighty-six cents, with interest till paid 205 aiad costs.
Now, what was tried, and what claim was evidence considered in support of, and what evidence was before the justice, we cannot answer from an inspection of the transcript. An appeal was taken from this judgment to the circuit court, and on September 26, 1896, the case was heard upon appeal in that court.
No complaint or appeal was filed in that court, and, there having been no. appeal filed before the justice, the pleadings could not' be amended before or during the trial in the circuit court, as provided in section 169 of said chapter.
It appears from the order, however, that the questions of law and fact were submitted to the court; that the court heard the evidence adduced and the arguments of counsel, and found for the plaintiff the sum of one hundred and twenty dollars and seventy-one cents, and rendered judgment for that amount against the defendants and the securities in the appeal bond. To this judgment the defendants objected and excepted, and the trrnscript of „the justice’s docket was made • part of the record.
Now, there having been no pleadings or issue either before the justice or in the circuit court upon appeal, we cannot say what was tried, or whether the judgment was proper or not. My conclusion therefore is that the judgment complained of is erroneous. The same is reversed, and remanded to the circuit court, in order that proper pleading's may be filed therein, and the cause properly heard and determined.
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