This action was for the recovery of two lots in the town of Dallas, and for damages. The defendant averred that he never did claim, nor does he now claim the lots ; pleaded to the jurisdiction, that the cause of action was cognizable only before a Justice of the Peace; and also not guilty. The jury, at the first trial, found for defendant. On new trial the cause was again submitted to the jury, and after all the evidence was heard, the defendant having moved to dismiss for want of jurisdiction, the motion was sustained.
This motion was predicated and sustained exclusively on the evidence in the cause, and, as there is no statement of facts, there is no criterion by which to test the correctness of the judgment. There may have been proof showing that the plaintiff by his averments sought improperly to bring the cause within the cognizance of the District Court. If so the suit should have been dismissed for want of jurisdiction. (Graham v. Roder, 5 Tex. R. 141; 3 Id. 7.) The presumption is there was such proof, or in other words, that the judgment was correct, and there being nothing in the record to rebut such presumption, it is ordered that the judgment be affirmed.
Judgment affirmed.