Bender Bros. v. Lockett

Citations

• 64 Tex. 566

Syllabus

<p>1. District court — Dismissal on appeal — Trial de novo.— Plaintiff recovered in a justice’s court and defendant appealed to the district court. After the cause had been docketed in the district court the papers were lost, and the plaintiff asked leave of the district court to substitute, which was granted. At the next term, plaintiff, having declined to substitute, asked that the appeal be dismissed. The court ordered the appeal dismissed from, the docket without prejudice to the judgment rendered in the justice’s court. Held:</p> <p>(1) That unless a case taken from a justice to a district court is dismissed for some illegality, or insufficiency in the manner of bringing it up, it stands for trial de novo in the court (R. S., arts. 811, 312, 817, 1294), and is conducted as if originally brought in the district court.</p> <p>(2) That the justice’s judgment is vacated and the plaintiff must prove his case anew; he may be dismissed for any cause that would have operated a dismissal had the case been continued in the district court. If the plaintiff is dismissed he is as effectually out of court as if his suit had never beau commenced. No order could be made in the district court reviving the vacated judgment of the justice’s court.</p> <p>(3) That the destruction of papers does not of itself take a cause out of court, but an order to that effect must be entered up. It was primarily the duty of the plaintiff to make the substitution, as it was to his interest that the cause should proceed.</p>