Ende v. Spencer

38 Tex. 114

Opinion

Walker, J.

This is an appeal from the judgment of the District Court sustaining a general demurrer. The appellee had become security for stay of execution rendered against one Hine in 1861 in a justice’s court. The justice was dead, and his docket and all the papers in the cases lost or destroyed. The plaintiff below brought his action in the District Court to revive these judgments. The case of Lander v. Eounsaville, 12 Texas, 195, was a similar case, except that in that case the plaintiff sought to enforce a vendor’s lien. But the reasoning of the court would sustain the right of the plaintiff in this case to bring his action in the District Court, and we do not see any objection to it. The judgments may not have been dormant, but they would have to be revived or substituted; and the amount being within the jurisdiction of the District Court, there can be no objection to suing in that court, and counting on the facts, as they existed, to support the action.

In most of the States provision is made by statute for bringing a judgment from a justice’s court to a court of record on scire facias to bind lands. It may have been the plaintiff’s object in this case to place himself on a better footing in the District Court than he had in the justice’s court; but whatever may have been his object, we think he had a right to bring his suit as he did. The judgment of the District Court is therefore reversed and the cause remanded.

Reversed and Remanded.