#### SEARS ROEBUCK & CO. v. WILLIAMS.

No. 10772.

Court of Civil Appeals of Texas. San Antonio.

Nov. 27, 1940.

*200Polk Hornaday, of Harlingen, for appellant.

Crane & Glarner, of Raymondvillé, for appellee.

MURRAY, Justice.

This suit was instituted in the Justice of the Peace Court of Willacy County, Precinct No. 4, by La Villa Hardware Company against Zack Williams and Sears Roebuck & Company seeking to recover the sum of $120.

La Villa Hardware Company stated its cause of action as follows:

> “Plaintiff says that during the month of July, 1936, A. D., defendant Sears Roebuck & Company sold a refrigerator to Zack Williams, for a consideration of Two Hundred and Nine ($209.00) Dollars, and warranted such machine to give such satisfactory service as the owner had a right to expect, and in December, 1937, the defendant, Zack Williams, sold said machine to plaintiff guaranteeing the same under the same guarantee as the defendant, Sears Roebuck & Company, had given to the defendant, Zack Williams; and that said machine has failed to perform the service for which it was sold, and in fact has failed to give any service, and has become a total loss to the plaintiff; and that plaintiff paid for the same One Hundred Twenty ($120.00) Dollars, to the said Zack Williams, and for that reason both defendants became liable to plaintiff in the sum of $120.00, the value of said machine if it had performed the service for which it was sold, and if it had-performed the service that the customer had the right to expect of it.

> “And that plaintiff has requested defendant Zack Williams and Defendant Sears Roebuck & Company, to fulfill the guarantee, and both of said defendants have failed and refused to do so, or to refund to plaintiff the value of said machine, which is One Hundred ($120.00) Dollars.

> “Plaintiff prays the court that defendant Zack Williams, who lives in Willacy County, and Sears Roebuck and Company, who has an office in Harlingen, Cameron County, Texas, in which office there is an agent upon whom service may be had, or it has a place of business at which service may be left.

> - “Wherefore, plaintiff prays the court that defendants be cited to appear at the next term of this court, and upon final hearing the plaintiff have judgment for $120.00 with *6%*interest on same, from December IS, 1937, and for all costs of court, and such other relief as the court may find him entitled to receive.”

Williams did not appear in the Justice Court and judgment was rendered against him. Sears Roebuck & Company did appear and answer, but upon final hearing judgment was rendered in favof of the La Villa Hardware Company and against both Williams and Sears Roebuck & Company for the sum of $120, together with interest at the rate of 6% per annum from December IS, 1937, until paid.

An appeal was taken by the defendants to the County Court of Willacy County, where upon a trial de novo judgment was rendered in favor of La Villa Hardware Company against Zack Williams in the sum of $120 with interest, and also in favor of Zack Williams against Sears Roebuck & Company for a like sum.

From this last judgment Sears Roebuck & Company have prosecuted this appeal.

Williams did not appear in the Justice Court and ask for judgment over against Sears Roebuck & Company for any amount that he might be required to pay to La Villa Hardware Company, but, on the contrary, permitted judgment to go against him by default. Having filed no pleadings in the justice court he would be precluded from asking for affirmative relief for the first time on appeal in the County Court. Harrison v. Gulf, C. & S. F. Ry. Co., 4 Willson Civ.Cas. Ct.App. § 69, 15 S.W. 643; Ostrom v. Tarver, Tex.Civ.App., 29 S.W. 69; Texas & P. Ry. Co. v. Hood, 59 Tex.Civ.App. 363, 125 S.W. 982; Humble Oil Co. v. Telephone Co., Tex.Civ.App., 2 S.W.2d 488; Welsh v. Chapman, Tex.Civ.App., 87 S.W.2d 293; Herring-Turner Hardware Co. v. Park, Tex.Civ.App., 123 S.W.2d 983.

There being no proper pleadings to support the judgment in favor of Williams against Sears Roebuck & Company, such judgment cannot stand.

The judgment of the trial court will be reformed so as to eliminate that part of the judgment allowing a recovery by Williams against Sears Roebuck & Company, and the judgment as thus reformed will be affirmed, except that appellant, Sears Roebuck & Company, shall recover judgment for all costs in this behalf expended in this and the courts below.

Reformed and affirmed.