289 S.W. 751 | Tex. App. | 1926
Appellee instituted this suit against appellant, seeking to recover $817.57 and to foreclose a mortgage lien on a Star automobile. The petition did not state the value of the automobile. At the time appellee filed his petition he filed an affidavit for a writ of sequestration, in which he alleged the value of the automobile to be $900, and alleged that he had a valid mortgage lien thereon and prayed for the issuance of a writ of sequestration. The cause was tried to the court, and resulted in a judgment being rendered for appellee for the amount of his debt, together with a foreclosure of his mortgage lien on the automobile.
The only question presented in this court for review is, Did appellee allege a cause of action within the jurisdiction of the county court? Appellant contends that it was essential for the petition to allege the value of the mortgaged property in order to show that the county court had jurisdiction. The overwhelming weight of authority is that the pleadings of plaintiff in the county court, where a foreclosure of a lien on personal property is asked, must show the value thereof. Cotulla v. Goggan,
So far as we have been able to find, this identical question has not been determined by our courts. Articles 6840 to 6843 of the Revised Statutes provide that in a suit to foreclose a mortgage the plaintiff may have a writ of sequestration issued upon the filing of his petition for the debt and an affidavit and bond. The affidavit may be embraced in and made a part of the original petition, or it may be made a separate and distinct paper, but in either event, before the issuance of the writ the affidavit must be filed as a part of the record in the case. Almost the identical state of facts as contained in this record was *752
presented in the case of T. N. O. Ry. Co. v. Rucker,
The rule is laid down in 3 Corpus Juris, 400, as follows:
"It has been held that the affidavit filed for writ in replevin, or an affidavit prepared and filed in pursuance of a statute in attachment or garnishment, may be looked to in order to ascertain the value of the property or the amount involved, as the case may be."
In the case of Pennington v. Ritchie,
Since we are of the opinion that the record shows affirmatively that the county court had jurisdiction of this cause, and this being the only issue presented by the appeal, the judgment of the trial court is affirmed. *1017