
    Tex. & Pacif. R. R. Co. v. W. H. Norton.
    (No. 2553, Op. Book No. 4.)
    Appeal from Dallas County.
    May 2, 1883.
   Opinion by

Hurt, J.

§ 403. Suit on sworn account; right of defendant to file a counter affidavit for the first time on appeal in county court. Norton sued on a verified account, in justice’s court; recovered a judgment, from which the railroad company appealed to the county court, and filed in that court a counter affidavit denying the justice and correctness of plaintiff’s account. Plaintiff moved to strike out the counter affidavit of defendant, because it had not been filed in justice’s court. This motion was sustained, and the court refused to permit defeiidant to introduce any evidence to disprove the account of plaintiff. Held, that though it be true that, on appeal in county courts from justice’s court, no new cause of action can be set up by plaintiff, and no set-off nor counterclaim not pleaded in justice’s court could be set up by defendant [Curry v. Terrell (Ct. App.), ante, p. 95], this would not prevent the filing of a counter affidavit which did not present or attempt to rely upon a set-off or counterclaim, but simply proposed to contest the account of plaintiff.

Reversed and remanded.  