76 Tex. 100 | Tex. | 1890
The record does not show that defendant made ■any answer in the Justice Court, but the judgment recites that the parties “ came by their attorneys and announced themselves ready for trial; ” that a jury was duly empanneled, who, “after hearing the evidence and the argument of counsel, retired to consider of their verdict,” etc. We think this was such an appearance and submission of the case upon the merits as would preclude defendant from afterwards on appeal filing a plea to the ■jurisdiction, or raising the question by special exceptions. The judgment recites enough to show that there was a trial on the merits; and though there is no entry on the justice’s docket showing what pleas were filed or made, we are informed that there was a trial upon submission of the evidence and the law. From aught that appeared, defendant waited until the case was appealed to the District Court, and there filed a motion to dismiss the complaint because it did not affirmatively show that the property was situated in the precinct of the justice trying the case. We think he had waived his right to demur to the jurisdiction. Rice, Stix & Co. v. Peteet, 66 Texas, 568.
It will not be presumed that the justice failed to perform his duty in entering on his docket the pleadings insisted on by the parties. Rey. Stats., art. 1573; Maass v. Solingsky, 67 Texas, 290.
Had the demurrer or motion to dismiss been presented in the Justice Court in due order, it should have been sustained, as the statute requires the complaint to show the fact that the property is situated in the precinct where the suit is brought. Rev. Stats., arts. 2443, 2445.
The complaint is merely informal in not alleging a jurisdictional fact;, it does not appear as a fact that the property is not situated in the precint where the suit was brought. If such fact did affirmatively appear, there might be a distinction made upon the ground that the justice had no power to try the cause, but we express no opinion upon that subject.
We conclude that the judgment of the court below should be reversed and the cause remanded for a new trial.
Reversed and remanded..
Adopted January 28, 1890.