1 Posey 527 | Tex. Comm'n App. | 1880
1. In analogy to the effect of an appearance entered by a defendant after default day, and before judgment by default taken, it is considered that the filing f the petition at the return term of the distress warrant md before motion to dismiss or action taken by the cou , will be a sufficient appearance to give the court jurisdic on. There was no error in overruling the motion to dismiss.
2, The petition, as amended; was sufficient in itself; nor Was it a material departure from the cause of action indicated in the affidavit for the distress warrant. The written contract from October 1, 1872, for one year, was set up as ■giving its terms, with the allegation that defendant held over for another year under it and was liable for rent at same terms. In amendment it was alleged that the reasonable rental value of the premises was $50 per month, as stated in the affidavit. The motion to quash was therefore properly overruled.
3. The petition alleged a lease for one year by written contract; a holding over by tacit consent; liability from such holding over for same rent — alleged to be the reasonable value, etc.
Defendant denies the tacit consent; alleged, however, a holding over by consent, but without agreement as to amount of rent to be paid; reasonable value alleged tobe but $15 per month.
Thus it was in issue, and material to the rights of the parties, whether the holding over was or not under the former contract as to the price; the new contract alleged by defendant being a rescission or setting aside of the written
Lockett had testified that about the expiration of the written lease, Maynard had approached him and asked a reduction of the rent; that it was refused, etc. Maynard, when on the stand, was asked touching the same conversation, “Whether or not, on the expiration of the written lease, you stated to the plaintiff, L. J. Lockett, that you would not continue to occupy the rented premises on the same terms? And what was the. said Lockett’s reply?” To this it was objected, (1) because defendant had no allegation in his pleadings authorizing it; (2) defendanthad set up no new contract; and (3) in effect that it was immaterial. The court sustained the exceptions.
It is manifest that these objections were not well taken. The testimony was competent material, and relevant to the issues. There was error in its rejection.
4. The judgment was, under the testimony, not excessive in amount. There is gross carelessness in the copy of the statement of facts in the record as to the dates to which the witnesses testified as to the value of the rent. The testimony appears directed to the year from October, 1874, to October, 1875, instead of from October 1, 1873, to October 1, 1874.
It is not necessary to notice other assignments.
Por the error in excluding the testimony of the witness Maynard, the judgment below should be reversed.
Reversed and remanded.
