Street v. Cumby ( 1926 )

Appellants filed a petition in the district court of the Forty-Fifth district, Bexar county, complaining of H. D. Cumby, justice of the peace of precinct No. 1, Grayson county, Tex., James Stevens, sheriff of Bexar county, and C. F. Simmons Medicine Company, a corporation of the city of St. Louis, Mo., alleging that on June 24, 1924, the Medicine Company instituted a suit in the justice's court of precinct No. 1, Grayson county, inferentially against appellants, although it is not in terms so alleged; that they pleaded their privilege to be sued in Bexar county where they resided.

It is further alleged that there was no controverting affidavit "alleging any fact or facts that would give the court jurisdiction over the persons of these plaintiffs, or either of them"; that there was no evidence before the court that would establish any jurisdiction over the persons of appellants; that the amended plea of privilege, or, as also called in the petition, "supplemental plea of privilege," was not controverted by any "controverting affidavit of any character"; and that the only evidence in the case was a contract which is attached to the petition. The judgment of the justice's court, a copy of which is attached to the petition, sets out that there was a controverting affidavit and after hearing the evidence the plea of privilege was overruled, and that the suit was on a verified account accompanied by an order which provided for payment of the account in Sherman, Grayson county. The allegations of the petition show that appellants had no cause of action and that the justice court had full jurisdiction of the persons of appellants and subject of the suit.

Appellants seek a review of their case by a writ of injunction, rather than an appeal, which was open to them, and they make no effort to excuse their failure to appeal their cause to the county court. The petition utterly fails to set out any cause of action.

The judgment is affirmed.