DocketNumber: No. 678.
Citation Numbers: 7 S.W.2d 122
Judges: BARCUS, J.
Filed Date: 5/17/1928
Status: Precedential
Modified Date: 1/12/2023
Appellants instituted this suit in the justice court seeking to recover certain farm products valued at $120, or, in the alternative, the value thereof. At the time the suit was filed, appellants filed their application for and a writ of sequestration was issued and levied upon 240 bushels of corn. Appellee filed an answer and a cross action against appellants in the justice court, seeking to recover $199.50. Judgment was rendered in the justice court for appellants for $100, from which appellee appealed to the county court. In the county court appellee filed his motion to quash the writ of sequestration and all proceedings thereunder and asked that the suit be dismissed, because no citation was issued in the justice court and served upon him. The trial court sustained this motion, quashed the sequestration proceedings, and dismissed appellants' cause of action as well as the cross-action of appellee.
Appellants present only one assignment of error, which challenges the correctness of the trial court's judgment in dismissing the suit. We sustain this assignment. It appears that no citation was issued in the justice court at the time the suit was filed. Appellee, having filed his answer, together with a cross-action in the justice court, entered his appearance and gave the justice court jurisdiction over the parties to hear and determine the issues involved in the litigation. Appellee's theory is that when a claim or demand is lodged with the justice of the peace for suit, under article 2401 of the Revised Statutes, the suit is not begun until the justice actually issues the citation. Our courts hold that in order to stop the running of limitation, it is necessary for a citation to issue on a claim or demand lodged with the justice for suit. Moore v. G., C. S. F. Ry. Co. (Tex.Civ.App.)
The judgment of the trial court is reversed and the cause remanded.
GALLAGHER, C.J., took no part in the disposition of this case.