Smith v. Hood

143 S.W.2d 646

Opinion

GRISSOM, Justice.

Plaintiff has appealed from a judgment dismissing his case. The case originated in the' justice court and plaintiff’s pleadings were oral. The record reveals defendant demurred to plaintiff’s petition. The court deferred action thereon. After conclusion of the evidence and argument, but before rendition of judgment, plaintiff asked permission to amend his pleadings. The court, refused plaintiff permission to amend, sustained the general demurrer and dismissed plaintiff’s cause of action. Such action was erroneous. When the demurrer was sustained, plaintiff had the right to amend his petition and plaintiff’s case should not have been dismissed unless he failed or refused to do so. Polk v. Almindinger, Tex.Civ.App., 243 S.W. 682, 684; Houston Transfer & Carriage Co. v. Whitcomb, Tex.Civ.App., 147 S.W. 358, 359; Western Union Telegraph Co. v. Ashley, Tex.Civ.App., 137 S.W. 1165; Hunt v. Ziegler, Tex.Civ.App., 267 S.W. 332, 333; Stevens-Etter Co. v. Grain Juice Co.,. Tex.Civ.App., 285 S.W. 667, 669; Harris v. Higden, Tex.Civ.App., 41 S.W. 412; Boren v. Billington, 82 Tex. 137, 18 S.W. 101; Gulf, C. & S. F. Ry. Co. v. Preston, 74 Tex. 181, 11 S.W. 1108; 33 Tex.Jur. 595. Also see, Crazy Water Co. v. Cook, Tex.Civ.App., 140 S.W.2d 878, writ refused.

The judgment is reversed and the cause remanded.