4 Willson 241 | Tex. App. | 1890
Opinion by
§171. Witness fees; when suit for not maintainable; limitation of action for; amendment of pleading on appeal to county court. This action was instituted in justice’s court by appellee, Murphy, against appellant, as administratrix of the community estate of herself and her deceased husband, to recover the amount of certain witness fees accrued in a suit in which A. J. Ballard, the
We are of the opinion that the trial amendment sets up a new cause of action, a cause of action essentially different from the one prosecuted in the justice court. In justice’s court the recovery was not sought under or by virtue of the judgment rendered in the suit of Ballard v. Byrd, but was sought upon the claims for witness fees alone, independent of said judgment. By the trial amendment the said judgment is sought to be made the cause "of action, the foundation for the recovery prayed. Evidently the purpose of this new departure was to avoid the plea of the statute of limitations. But, whatever the purpose, the amendment should not have been allowed, as it changed the character of the suit. It is well settled that a cause of action, not sued upon in the justice’s court, cannot be brought into the case in the county court. As the case is made in the justice’s
Reversed and remanded. ■