Hooper Lumber Co. v. Texas Fixture Co.

230 S.W. 141 | Tex. | 1921

Appellee owed appellant an open account for goods, wares and merchandise in the sum of $202.50, of which no part was paid by or for appellee. Appellant was of the belief that it would lose its entire debt unless it could get a speedy judgment, and, for the express purpose of bringing the amount within the jurisdiction of the justice's court, appellant abandoned and renounced its debt to the extent that it exceeded $199.75, intending to be forever precluded from asserting any claim to such excess.

Appellant then sued appellee in the justice's court on the account for $199.75.

Appellee sought to dismiss the cause in both the Justice's Court and in the County Court, to which the case was taken by certiorari, on the facts stated, which were properly plead and were admitted to be true.

The Justice's Court gave appellant judgment for the amount sued for, with interest and costs. The County Court dismissed the suit on the ground of want of jurisdiction.

The above facts appear from the certificate of the Court of Civil Appeals; and the question certified is:

"Whether or not the County Court erred in dismissing the cause for want of jurisdiction?"

We answer that there was no error in the action of the County Court.

Appellant's claim was a liquidated demand for $202.50, of which exclusive jurisdiction was given by the Constitutiton to the County Court. It was not shown that this demand embraced any cause of action either optional or severable for the amount sought to be remitted. Appellant appears to have undertaken to deprive the County Court of its exclusive jurisdiction by merely willing that an arbitrary part of its demand be extinguished. No actual extinguishment of any part of the demand resulted from the mental operation of appellant alone, for which no consideration existed. Missouri K. T. Ry. Co. v. Smith, 98 Tex. 47, 66 L.R.A. 741, 107 Am. St., 607, 4 Am. Cases, 644, 81 S.W. 22. The demand remained one within the County Court's jurisdiction and appellee had the right, on his seasonably interposed objection, to have the suit determined by that court. Pecos N.T. Ry. Co. v. Canyon Coal Co., 102 Tex. 481, 119 S.W. 294; Burke v. Adoue, 3 Texas Civ. App. 496[3 Tex. Civ. App. 496],22 S.W. 824, 23 S.W. 91; St. Louis S.W. Ry. Co. of Texas v. Berry, 177 S.W. 1187.

To avoid misinterpretation of our answer, it may be best to say that if appellant's demand had admitted of a segregation of the amount sought to be remitted, a different question would have been presented. In that event, the case would have been governed by the principle applied in Ft. Worth R.G. Ry. Co. v. Mathews,108 Tex. 231, 191 S.W. 559.