Smith v. Hood

Court of Appeals of Texas

Smith v. Hood

143 S.W.2d 646

CourtCourt of Appeals of Texas

DecidedSeptember 20, 1940

DocketNo. 2036

StatusPublished

Cited by4 cases

This text of 143 S.W.2d 646 (Smith v. Hood) 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.

Bluebook

Smith v. Hood, 143 S.W.2d 646 (Tex. Ct. App. 1940).

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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.

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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.

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Bluebook (online)

143 S.W.2d 646, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-hood-texapp-1940.

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