Washington County v. Schulz , 63 Tex. 32 ( 1885 )

West, Associate Justice.

We are of opinion that, under the state of facts disclosed by the record in this case, the district court was in error in entirely dismissing appellant’s suit, and in rendering a final judgment against the county.

The judgment recites that the case was heard only on appellees’ motion to dissolve the injunction, which had been previously granted in the cause; and on that motion being sustained, and before any further action had been had, that the appellant at once demanded a hearing of the cause on the merits.

If the petition contained averments sufficient, if established by proof on the final hearing, to entitle appellant to the relief sought, or if it could have been amended so as to state a good cause of action, it should have been retained, when he asked that it be done, to give the appellant an opportunity of proving the averments to be true, and thus obtain the relief sought. The following cases sustain the views above announced: Hale v. McComas, 59 Tex., 484; Pullen v. Baker, 41 Tex., 420; Gaskins v. Peebles, 44 Tex., 390; Sims v. Redding, 20 Tex., 387; Floyd v. Turner, 23 Tex., 394; Lively v. Bristow, 12 Tex., 60; Fulgham v. Chevallier, 10 Tex., 518; Baldridge v. Cook, 27 Tex., 565; Edrington v. Allsbrooks, 21 Tex., 188; Eccles v. Daniels, 16 Tex., 137.

The judgment is reversed and the cause remanded.

Reversed and remanded.

[Opinion delivered January 13, 1885.]