200 S.W. 228 | Tex. App. | 1917
Appellee, on August 7, 1915, filed suit in the justice court to recover the sum of $100, the value of a horse alleged to have been killed by one of appellant's trains. Upon a trial de novo in the county court, judgment in his favor was rendered in the sum of $100. This judgment permits recovery of interest from its date. The railway company appeals. The pleadings of plaintiff are shown by the citation in the justice court. It is alleged that the horse was of the value of $100, and was killed November 8, 1913, and that by its death plaintiff had been damaged in the sum of $100. He asked judgment for his damages, costs, and general relief. There was no prayer for the recovery of interest.
Appellee has filed a motion to dismiss the appeal upon the ground that neither the judgment nor amount in controversy exceeds the sum of $100, exclusive of interest and costs. There can be no question that the judgment does not exceed that amount. As to whether the amount in controversy should be so considered there has been some confusion in the authorities, which to some slight extent has been cleared by the recent decision of the Supreme Court in Railway Co. v. Mathews (Sup.)
Appellant in support of the jurisdiction of this court over the appeal cites Railway Co. v. Albin, 185 S.W. 647, decided by this court, but we think the question presented is ruled by the Mathews Case and Railway Co. v. Rayzor,
On the other hand, in the Albin Case, it was held that interest, to which the allegations of the petition showed the plaintiff to be legally entitled to recover as an item of a his damages, was to be considered a part of the matter in controversy, notwithstanding recovery thereof was not sought. Such holding is not in harmony with the later ruling of the Supreme Court in the Mathews Case as above set forth, and as to any conflict between the two holdings, the latter is controlling. The view of this court as set forth in the Albin Case cannot prevail against the superior authority of the Supreme Court. In obedience to this superior authority we hold that the amount in controversy does not exceed the sum of $100, and that the appeal should be dismissed. See, also, Strickland v. Duffie, 191 S.W. 622; Merchants, etc., v. Bank, 192 S.W. 1098.
Dismissed.
WALTHALL, J., not sitting, being absent on committee of judges assisting the Supreme Court.