3 Tex. 492 | Tex. | 1848
delivered the opinion of the court.
This suit was originally brought before a justice of the peace on a note or due bill in the following words, viz.: “ Yazoo City, October 12, 1843. Due Holmes, Bedford & Co., ninety-eight dollars and sixty-five cents. (Signed) A. F. Keeble.”
The summons issued on the 24th day of March, 1848. The-defendant appeared, and pleaded the statute of limitation. .The-justice of the peace overruled the plea, and stated “ that it wat,. ' from the fact of the note in this case having been filed for collection on the 11th day of October, 1847, about one and a half o’clock A. M.; and as a plea filed is tantamount to an appearance, I give final j udgment for plaintiff vs. defendant, for ninety-eight dollars and sikty-five cents debt, with thirty-six dollars-
(Signed) “M. 0. Rosees, J. P.”
Prom this judgment, the defendant appealed to the district court. On the trial in that court, it appears from the statement of facts that there was no evidence hut the due hill or note sued on, and the following judgment was rendered: “It is considered hy the court, that the statute of limitations is not a bar in this cause, and that the plaintiff recover of the defendant the sum,” etc.
The opinion of the court was doubtless founded on the supposition that filing the note with the justice of the peace was the commencement of the suit; and as the Statute had not interposed a bar at that time, that it was then arrested. In this, we are of the opinion the court below erred. We cannot consider the suit as commenced until the summons issried— that being the leading process, and initiative in suits brought in the courts of a justice of the peace. The time when the note was given to the justice to commence a suit cannot be a matter of any consequence only between him and the party who had given him the note to sue on, on a charge of neglect of duty.
The judgment must be reversed.