Wheeler v. Goffe

24 Tex. 660

Opinion

Roberts, J.

The demurrer seems to have been properly sustained, as the plaintiff below showed that he had an ample and appropriate remedy in the County Court, and was under no necessity to resort to the District Court. (O. & W. Dig. Art. 835.)

The record shows that the plaintiff below, by his counsel, dis missed the case at the Spring Term of the District Court, for 1859. At the Fall Term, 1859, a motion was made and sustained, to amend the judgment entered in the case, so as to show that the suit was dismissed, upon the demurrer, by the court, and a judgment was accordingly entered, nune fro tunc. This was done without any notice to the defendant below, and is therefore erroneous. (O. & W. Dig. Art. 507; M‘Nairy v. Castleberry, 6 Texas Rep. 286.) The amendment of the judgment must be disregarded. The case, then, rests upon the judgment of dismissal by the counsel for the plaintiff, as first entered; and upon that the plaintiff can present no ground of reversal. Therefore, that judgment is affirmed.

Reversed and remanded.