Tex. & St. Louis R'y Co. v. Melear

2 Wilson 402

• Court: Court of Appeals of Texas
• Decided: November 26, 1884
• Docket: No. 1834
• Status: Published

Opinion

Opinion by

Will-SON, J.

§ 457. Pleading in county court on appeal from justice's court; a cause of action not pleaded in justice's court cannot be pleaded in county court. Appellee brought this suit in justice’s court against appellant, upon an account. The account contained four items, which were erroneously added up, making the sum total $366.70. A credit of $252.20 was entered upon the account, and a balance shown of $114.50 in favor of appellee. A correct addition of the four items of the account shows the sum total thereof to be only $201.10, and subtracting this amount from the credit admitted, leaves a balance of $51.10 due thereon to appellant. This error in the account does not appear to have been detected in justice’s court, because judgment was there rendered in favor of appellee for the balance erroneously shown by the figures of said account. The case being appealed to the county court by appellant, appellee filed an amended account, which contained an additional item, which was not embraced in the original account, said item amounting to the sum of $165.60, making the balance which appellee claimed to be due him $114.50, as erroneously shown in the original account. Appellant moved to strike out this amended account, because it set up a new cause of action as to said additional item, which was not sued upon in the justice’s court. This motion was overruled, and judgment entered for appellee for said balance of account. Held error. The said additional item in the amended account constituted a new cause of action, which had not been sued upon in the justice’s court. In the county court, on an appeal from justice’s court, neither pai'ty will be permitted to plead causes of action, or defenses, which were not pleaded in the justice’s court.

November 26, 1884.

Reversed and remanded.