Nathan v. Brashear

105 S.W.2d 328, 1937 Tex. App. LEXIS 941

• Court: Court of Appeals of Texas
• Decided: April 15, 1937
• Docket: No. 10392.
• Status: Published

Opinion

CODY, Justice.

This is a suit by defendant in error, plaintiff in the court below, to recover a portion of the rent alleged to be due him, as one of his testator’s legatees, from plaintiff in error. The original petition, properly construed, asserted the right to recover a sum well within the jurisdiction of the district court. Several months after plaintiff in error had filed his answer, consisting of a general demurrer and a general denial, defendant in error, with leave of the court, filed his first amended original petition, asserting a right to a larger share of the rent than had been claimed in his original petition. No new citation was served on plaintiff in error. Relying on an erroneous construction of the original petition, plaintiff in error considered that the original petition set up a cause of action for' a sum less than the court’s jurisdictional amount, and suffered a judgment to be taken against him without appearing in court when the case was tried.

As the original petition stated a cause of action within the jurisdictional amount of the court, the argument that it was necessary to cite plaintiff in error in the amended pleading in order for the .court to render a valid judgment against him thereon, falls. The judgment is affirmed.

Affirmed.