117 S.W. 442 | Tex. App. | 1909
Appellants brought this suit to recover damages of appellees for the alleged wilful, malicious and wrongful suing out of a writ of sequestration and ejecting them from certain premises held by them under a rental contract for a period of one year. A trial resulted in a judgment for appellees.
The trial court gave the following instruction, which is assigned as error, viz.: "Gentlemen of the jury: You are are instructed to find a verdict in this case in favor of the defendants J. C. Butner et al. The court gives you this instruction because from the judgments and orders of the Justice Court introduced in evidence the court holds that there is simply a question of law raised and not a question of fact, and hence the instructed verdict." The evidence in regard to the orders of the Justice Court, referred to by the court in its charge, shows that J. C. Butner brought an action of forcible detainer in the Justice Court against the Martins to eject them from the premises here in question, and recovered a judgment. On the day following the rendition of said judgment the justice of the peace granted a new trial. The case was again heard and judgment rendered in favor of the Martins. From this last judgment Butner regularly perfected an appeal to the County Court. The case was regularly docketed in the County Court and thereafter Butner appeared in the County Court and asked a dismissal of the case, which was accordingly done. Butner also brought a sequestration suit. A writ of sequestration was issued and levied, and the premises were replevied by Butner and subsequently he dismissed the sequestration suit.
The effect of the appeal by Butner from the justice's judgment was to annul said judgment, and the case stood in the County Court for trial de novo, as if originally brought in said court, and not having been dismissed for some illegality or insufficiency in the manner of bringing it up, said justice's judgment had no legal force or effect, and this case stood alone upon its merits irrespective of the action of the Justice Court. (Bender v. Lockett,
We do not think the evidence on the merits of the case was such as warranted the court in giving a peremptory instruction to find for the defendant. There was conflicting testimony on the question as to the duration of the rental contract; the Butners testifying that *225 the Martins contracted for the premises by the month only, while Mrs. Martin testified, in effect, that the contract was for a year, for which she was to pay $25 and board the Butners. This conflict raised an issue that required the submission of the case to the jury for their determination. The judgment is reversed and the cause remanded.
Reversed and remanded.