Rush v. Lester

2 Wilson 390

• Court: Court of Appeals of Texas
• Decided: November 26, 1884
• Docket: No. 1842
• Status: Published

Opinion

Opinion by

White, P. J.

§ ÍÍ2. Pleading in justice's court; a plea which is abandoned in justice's court cannot be entertained on appeal in the county court. Appellant sued appellee in justice’s court upon a promissory note. Appellee pleaded fraud, on the part of appellant in obtaining the execution of said note, and also pleaded failure of consideration. He, however, expressly abandoned the plea of failure of consideration, and that issue was not tried in justice’s court. On a trial de novo, upon appeal to the county court, appellee in that court renewed his plea of failure of consideration, and appellant moved to strike out said plea, because it was inadmissible to plead a defense in the county court which had not been pleaded and relied upon in the court a quo. This motion was overruled and judgment was rendered for appellee. Held: The plea of failure of consideration, not being presented in the justice’s court first trying the cause, could not be presented and relied,upon in the county court on appeal. Having" been abandoned in the justice’s court, the proposition to plead it again in the county court was, in effect, the same as though it were a new plea, presented for the first time in the county court. On appeal from justice’s court, a defendant cannot plead a defense in the county court which he did not plead and rely upon in the'justice’s court. [W. & W. Con. Rep. § 239.] It was error to overrule appellant’s motion to strike out said plea.

November 26, 1884.

Reversed and remanded.