Holman v. Ward

279 S.W. 310 | Tex. App. | 1925

^* Writ of error granted March 3, 1926. In support of the contention that the court below did not have jurisdiction of the suit, appellants insist it appeared that the amount in controversy, exclusive of interest claimed, was less than $500. Looking alone to the amended petition on which the trial was had, it did so appear, but the sum sued for according to the original petition was $817.27, exclusive of interest. In such a case it seems to be settled that, when a question as to the jurisdiction of a court, dependent upon the amount in controversy, arises, and there is no plea that the sum claimed in the original petition was fraudulently alleged for the purpose of giving jurisdiction to the court, it (the question) is determinable by reference to the amount claimed in that petition, and not the amount claimed in the amended petition. Ry. Co. v. Bank, 100 Tex. 17, 93 S.W. 431; Wood v. Grocery Co. (Tex.Civ.App.) 164 S.W. 1070; Ins. Co. v. Bank (Tex.Civ.App.) 135 S.W. 1083; Transportation Co. v. Dillard (Tex.Civ.App.) 187 S.W. 975; Trust Co. v. Blasingame (Tex.Civ.App.)184 S.W. 574. According to that rule the district court, having acquired jurisdiction of the suit made by the original petition, did not lose it because the amount claimed had been reduced by an amended petition to less than $500, exclusive of interest, before the suit was reached for trial.

Another theory upon which appellants insist the trial court was without jurisdiction of the suit is that the $817.27, exclusive of interest, sued for in the original petition, belonged to the minors severally in parts of less than $500 each. It is urged that, in determining whether the amount in controversy was such as to confer jurisdiction upon the court or not, the amount of the parts separately, and not the aggregate thereof, should be looked to. The contention is overruled. The suit was on the one bond given by Holman as guardian for the benefit of all the minors. 28 C.J. 1311; Donnell v. Dansby, 58 Okla. 165, 159 P. 317; Carlile v. Eldridge, 1 White W. Civ.Cas.Ct.App. § 986; Hamilton v. Wilkerson, 1 White W. Civ.Cas.Ct.App. § 556; Peterson v. Smith, 30 Tex. Civ. App. 139, 69 S.W. 542.

As shown in the statement above, the judgment in appellees' favor included $692.56 the jury found they were entitled to as interest on the balance ($384.75) of the $817.27 in Holman's hands as guardian, according to his account, as restated by the court. Appellants insist that the order of the county court restating said account and directing Holman to pay into court the balance thereby shown in favor of his wards established conclusively that the liability of Holman was for that balance (to wit, said $384.75) only, and, therefore, that the judgment was erroneous so far as it was also for said sum of $692.56 as interest. We think the contention should be sustained. The county court acted within power it possessed when it restated Holman's account as guardian and directed him to pay into court the sum it found him to be due the minors. Articles 4273 and 4274, Vernon's Sayles' Statutes. An appeal from the action of that court in that respect might have been prosecuted (article 4290, Vernon's Statutes), but none was prosecuted. Hence the order became final, and not collaterally attackable, at the end of the term at which it was made and entered. Simkins' Administration of Estates in Texas, pp. 9, 10. Had Holman then complied with the order by paying into court the $384.75 it determined he was due his wards, we see no reason why, on the case made by the pleadings, such payment would not have operated as a satisfaction in full of the claim asserted by appellees against him and his sureties. If it would, then we see no reason why, on those pleadings, appellees should have been allowed a recovery of a sum in excess of $384.75 and interest thereon from the date, to wit, April 2, 1924, of the order in question.

The judgment will be so reformed as to allow a recovery by appellees against appellants of $384.75 and 6 per cent. interest thereon from April 2, 1924, instead of $1,077.31, and as so reformed it will be affirmed.