Burton v. Lowry

Court of Appeals of Texas

Burton v. Lowry

77 S.W.2d 1059

CourtCourt of Appeals of Texas

DecidedNovember 9, 1934

DocketNo. 13063

StatusPublished

Cited by3 cases

This text of 77 S.W.2d 1059 (Burton v. Lowry) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Burton v. Lowry, 77 S.W.2d 1059 (Tex. Ct. App. 1934).

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Opinions

LATTIMORE, Judge.

This is an appeal from an order overruling a plea of privilege. The suit was on three notes. The notes were in evidence and the proof sufficient to justify the trial court in finding that appellant executed them. However, appellee’s controverting affidavit only alleged “that the notes sued on herein specifically provide that they are payable at the First National Bank of Wichita Falls and that by reason thereof the contract is performable in Wichita County.” Assuming that such allegation is not sufficient, it is apparent to us that the ends of justice can be best subserved by remanding this cause to Wichita county for further proceedings, which is all that appellee asks. If the trial court'had sustained the general demurrer to the controverting affidavit, appellee could have amended. We now give him that which the trial court should have done. Smith v. Rogers (Tex. Civ. App.) 34 S.W.(2d) 312, 313; Sparks v. West (Tex. Civ. App.) 41 S.W.(2d) 301.

Many cases-can be cited pro and con as to whether a case should be remanded or rendered. Each case must stand on its own legs as to what disposition is most promotive of justice. Certainly we will- not condone coun- ’ sel attempting to play hide and seek in the court, but we do not regard this as such a case.

Reversed and remanded.

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LATTIMORE, Judge.

This is an appeal from an order overruling a plea of privilege. The suit was on three notes. The notes were in evidence and the proof sufficient to justify the trial court in finding that appellant executed them. However, appellee’s controverting affidavit only alleged “that the notes sued on herein specifically provide that they are payable at the First National Bank of Wichita Falls and that by reason thereof the contract is performable in Wichita County.” Assuming that such allegation is not sufficient, it is apparent to us that the ends of justice can be best subserved by remanding this cause to Wichita county for further proceedings, which is all that appellee asks. If the trial court'had sustained the general demurrer to the controverting affidavit, appellee could have amended. We now give him that which the trial court should have done. Smith v. Rogers (Tex. Civ. App.) 34 S.W.(2d) 312, 313; Sparks v. West (Tex. Civ. App.) 41 S.W.(2d) 301.

Many cases-can be cited pro and con as to whether a case should be remanded or rendered. Each case must stand on its own legs as to what disposition is most promotive of justice. Certainly we will- not condone coun- ’ sel attempting to play hide and seek in the court, but we do not regard this as such a case.

Reversed and remanded.

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77 S.W.2d 1059, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burton-v-lowry-texapp-1934.

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