DocketNumber: No. 5396.
Citation Numbers: 175 S.W. 1133, 1915 Tex. App. LEXIS 486
Judges: Rice
Filed Date: 2/18/1915
Status: Precedential
Modified Date: 11/14/2024
This suit was originally brought in the justice’s court by appellees against Thomas J. Freeman, receiver of the International & Great Northern Railway Company, to recover damages to a shipment of syrup from Taylor to Austin, over said road.
The receiver replied by general denial and a plea of. two years’ limitation. On trial ap-pellees recovered judgment for the amount sued for, being the value of said syrup, together with $5 freight charges thereon, as well as $10 attorney’s fee, from which an appeal was taken to the county court. There said receiver, on August 8, 1913, filed an amended answer, setting up, besides the defenses urged in the justice’s court, a plea in bar, alleging his appointment and subsequent discharge by the United States Circuit Court for the Western District of Texas as receiver of the International & Great Northern Railway Company, and the sale and conveyance by him during such receivership of all the properties, rights, and franchises of said company, and also a plea urging that the loss, if any, to the shipment of syrup was due to its fermented condition at the time of shipment.
Thereupon appellees filed their motion to make the purchaser, the International & Great Northern Railway Company, a party defendant, which motion was granted, and said company, having been served with citation, appeared at the next term and filed its motion' to quash same, which motion was overruled. It then filed its plea in abatement, urging want of jurisdiction in the county court as to it, for the reason that it had not been made a party defendant in the justice’s court, and that the amount in controversy was less than the original jurisdiction of said county court. This plea in abatement, together with the plea of discharge of defendant Freeman, was overruled. Thereupon the railway company filed its original answer, containing a general demurrer, special exceptions under the two and four years’ statutes of limitation, and likewise pleaded limitation of two and four years, and that the fermented condition of the syrup at the time of its shipment caused the loss.
Trial before the court resulted in a judgment against both defendants for the entire amount sued for, with a stipulation that execution should issue only against the International & Great Northern Railway Company, from which judgment both defendants have appealed.
On appeal from the justice to the county court, the case must be tried de novo, just as if originally brought in that court. The necessity for making appellant a party did not arise until the receiver filed his plea in abatement, whereupon the appellees immediately responded, asking that appellant railway company be made a party. This court, in the ease of Marshall v. Stubbs, 48 Tex. Civ. App. 158, 106 S. W. 435, in an opinion delivered by Mr. Chief Justice Fisher, held that, on appeal from the county court to the district court in a probate proceeding, new parties might be made pending the appeal. See, also, Davis v. West Texas Bank & Trust Co., 116 S. W. 393; Grayson v. Hollingsworth, 148 S. W. 1135; Mo. Pac. Ry. Co. v. Smith (Sup.) 16 S. W. 803. In Davis v. West Texas Bank & Trust Co., supra, it was expressly held that on appeal to the county court from a judgment in garnishment proceedings before a justice, in which an attempt was made to bring in other claimants to the fund garnished than the judgment debtor, the county court might allow the intervention of such claimants. Cyc., in discussing this question, says:
“As a general rule, on appeal from a judgment of the justice of the peace the issues cannot be changed, as by setting up a new cause of action, but the cause must be tried in the appellate court upon the same issues that were presented in the court from which the appeal was taken. The rule, however, does not apply to new matter, such as payment, release, and what may have arisen after the trial below.” 24 Cyc. 724b, and notes to cases from many states.
The same author further says:
“The cases, even those in the same jurisdiction, are greatly at variance as to the extent to which amendments as to parties may be allowed on appeal from justices of the peace. As a general rule, however, the appellate court may, in its discretion, and to promote the ends of justice, allow such amendments as to parties as do not change the cause of action. But, where a new party defendant is brought in by amendment, the court can acquire no jurisdiction to render judg-, mont against him without due service of summons or an authorized appearance.” 24 Cyc, 733, 734, and cases noted.
Our statute does not prohibit the making of new parties on appeal; the law abhors a multiplicity of suits. The refusal to permit the making of new parties in some instances would defeat the ends of justice, as where limitation might run in the meantime, if a new suit had to be filed, as contended by appellants. We believe in the instant case that justice is best subserved by holding that appellant company was properly made a party defendant, and therefore overrule its assignment complaining of the action of the court in this respect.
We think the facts show that the claim for attorney’s fees was properly allowed under the act of March 13, 1909. See Acts 31st Leg. p. 93, e. 47. The remaining assignments have been considered and are regarded as without merit.
Believing, for the reasons stated, that the case should be reversed and judgment here rendered in behalf of the receiver, it is so ordered; but finding no error justifying a reversal as to the International & Grfeat Northern Railway Company, the judgment as to it is in all things affirmed.
Affirmed in part, and in part reversed and rendered.
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