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William J. Lemp Brewing Co. v. McDougle

William J. Lemp Brewing Company v. W. C. McDougle.

William J. Lemp Brewing Co. v. McDougle, 90 S.W. 215 (Tex. App. 1905)
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Court
Court of Appeals of Texas · State Appellate Courts
Decided
November 16, 1905
Judges
Gill
Citations
90 S.W. 21540 Tex. Civ. App. 5831905 Tex. App. LEXIS 202
Headnotes
Practice on Appeal — Exceptions Below to Pleadings — Waiver. Where there is nothing in the transcript to suggest that the action of the trial court was ever invoked on an exception in plaintiff’s pleadings to one of defendant’s pleas, the exception must be treated as waived.
Summary
Error from the County Court of Jefferson. Tried below before Hon. D. P. Wheat.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Gill

GILL, Chief Justice.

Plaintiff in error sued defendant in error to recover the value of certain bar fixtures and also to recover upon a contract which defendant is alleged to have made for the benefit of plaintiff in error. The defendant in error reconvened for $1,000, the" alleged value of a carload of beer which he avers belonged to him, but was converted by plaintiff in error. The trial court allowed $250 of plaintiff’s claim, but allowed defendant’s reconvention to the extent of $775, and gave him judgment for the difference.

Plaintiff’s supplemental petition contained an exception to the plea in reconvention on the ground that it was an effort to reconvene for unliquidated damages against a liquidated demand, the one being in no way related to the other, and the only error assigned is the refusal of the court to sustain the exception. The assignment is not supported by the record. There is nothing in the transcript to suggest that the action of the court was ever invoked on the exception. It must therefore be treated as waived. (Phoenix Ins. Co. v. Boren, 83 Texas, 98 ; Floyd v. Rice, 28 Texas, 343 .)

The judgment is therefore affirmed.

Affirmed.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1910: 11913: 11918: 21919: 119102026peak 1918 · 2

Relies on it most ⓘ

  1. Cotton v. Cooper160 S.W. 597 (Tex. App. 1913)
  2. Houston, E. & W. T. Ry. Co. v. Waltman132 S.W. 518 (Tex. App. 1910)
  3. Logan v. Martinez211 S.W. 624 (Tex. App. 1919)
  4. Merriman v. Swift & Co.204 S.W. 775 (Tex. App. 1918)
  5. Holmes v. Tennant211 S.W. 798 (Tex. App. 1918)

Most recent

  1. Logan v. Martinez211 S.W. 624 (Tex. App. 1919)
  2. Holmes v. Tennant211 S.W. 798 (Tex. App. 1918)
  3. Merriman v. Swift & Co.204 S.W. 775 (Tex. App. 1918)
  4. Cotton v. Cooper160 S.W. 597 (Tex. App. 1913)
  5. Houston, E. & W. T. Ry. Co. v. Waltman132 S.W. 518 (Tex. App. 1910)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Phœnix Ins. v. Boren, Davidson & Stewart, 18 S.W. 484 (Tex. 1892) 37
Floyd v. Rice, 28 Tex. 341 (1866) 28

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