Summary
In City of Houston v. Lubbock, 35 Tex. Civ. App. 106, 79 S.W. 851, writ of error refused, the Court of Civil Appeals held that a petition to recover salary as policeman, setting out the facts and praying for general relief, authorized allowance of interest.
Summary of this case from Arrington v. McDanielOpinion
Decided March 3, 1904.
1. — Policeman — Term of Office — Discharge — Salary — Case Followed.
The case of City of Houston v. Estes, ante, p. — , is followed and controls this case.
2. — Interest — Pleading.
Interest which is the legal consequence of the debt or obligation sued on may be recovered though not claimed in the petition. Hipp v. City of Houston, 30 Texas Civ. App. 573[ 30 Tex. Civ. App. 573].
Appeal from the District Court of Harris. Tried below before Hon. Wm. P. Hamblen.
T.H. Stone, City Attorney, for appellant.
Wilson Jackson and Lock McDaniel, for appellee.
This suit was brought by appellee to recover of the city of Houston $4550 alleged to be due him for salary as policeman of the city from May 20, 1898, to the date of the trial.
From a judgment for $2085.42 rendered by the trial court sitting without a jury the city has appealed.
The case is a companion of City of Houston v. Estes, this day decided by this court, and the pleadings and facts are identical except that in this case the plaintiff was appointed March 30th and was discharged by the marshal May 20, 1898, and that in this case the plaintiff is not alleged to have accepted any other appointment.
The same questions are made as in the Estes case except that in this case appellant contends that the court should not have allowed plaintiff to recover interest as the petition contained no prayer for such relief. Because of the similarity of the cases we do not deem it necessary to state the pleadings and facts with particularity as was done in the Estes case.
The plaintiff was appointed and qualified as alleged, entered upon the duties of his office and served until May 20th, when he was discharged by the marshal without charges or cause. The court limited his judgment to salary for a two-year term and interest. We find the judgment is fully sustained by the record.
The assignment complaining of the judgment for interest can not be sustained. The facts were set out in the pleading and there was a prayer for general relief. Fort Worth D.C. Ry. Co. v. Greathouse, 82 Tex. 104; Hipp Key v. City of Houston, 71 S.W. Rep., 39, 30 Texas Civ. App. 573[ 30 Tex. Civ. App. 573].
Following City v. Estes, supra, the judgment is affirmed.
Affirmed.
Writ of error refused.