148 S.W. 1122 | Tex. App. | 1912
Upon a former day of this term this appeal was dismissed upon the ground that the transcript of the record must have affirmatively shown that the trial court had jurisdiction of the cause, and, the record failing to disclose an appeal bond or affidavit in lieu thereof perfecting the appeal from the justice court to the county court, it therefore did not disclose that the trial court had jurisdiction.
Appellee in his petition alleged that the appellant was indebted to him in the sum of $140 as rental for a building belonging to him and occupied by the appellant from May 1, 1910, to August 1, 1910. The notations upon the justice's docket disclose that appellant answered by general denial and reconvened for damages in the sum of $275 alleged to have been caused by the defective condition of the rented premises, and it appears that on November 1, 1910, the court sustained exceptions to the cross-action on the ground that the same was not within the jurisdiction of the court, and appellant then amended and alleged its damage in the sum of $200. Thereafter, on November 2d, appellant filed in the justice court written pleadings upon which the cause there and in the county court appears to have been tried. Appellant in this written pleading alleges that from the 15th day of March, 1908, until the 15th day of March 1910, it was occupying as the tenant of appellee the premises upon which appellee was then suing for rent; that it was engaged in conducting therein a mercantile business, and by the terms of the written contract between the parties it was the duty of appellee to keep the building in a good state of repairs so that appellant's stock of goods would be protected from storms and rain; that appellee failed to keep the same in good repair, and on November 28, 1909, a very heavy rain fell, and, by reason of the defective condition of the roof of the building, certain of its goods, wares, and merchandise were damaged, to its damage in the sum of $487.05; that its tenancy under the written contract of lease expired on March 15, 1910, and that on April 5th of said year, while occupying the building as a tenant from month to month, another rain fell, injuring its goods, wares, and merchandise, to its damage in the sum of $45.01, and it prayed that it have judgment against plaintiff, canceling his rent account, "and for the further sum of $200 damages, the same being the jurisdictional amount of the justice court," and for general and special relief. *1123
As stated in the original opinion herein rendered, appellee recovered a judgment for the sum of $79.25, and the various assignments of error of the appellant relate entirely to its cross-action. We deem it unnecessary to pass upon the merits of these various assignments of error, for the reason that, whether they be meritorious or not, the cross-action was one which could not be asserted by the appellant because it was beyond the jurisdiction of the justice court in which the suit originated, and, since that court had no jurisdiction of the counterclaim, the county court acquired none upon appeal. This question has been directly passed upon by our courts in quite a number of cases, and is no longer an open question in this state.
In Williamson v. Bodan Lumber Co.,
Cain v. Culbreath, 35 S.W. 809, was a suit by appellant in justice court against appellee on account, for rent, $75, $10.75 for advances, and on open account for $69.45. Distress warrant issued for the rent and advances. Defendant answered by setting up counterclaim for work and labor for plaintiff done on the premises for $192; that the writ was wrongfully issued, and that the levy on his crop damaged him, to the value thereof, $180; and for punitive damages growing out of the writ, $100. There was judgment in the justice court on these issues in favor of Culbreath, the defendant, for $124.50, from which the plaintiff appealed to the county court, where the same issues were tried by the court without a jury. The court adjusted the claims of the parties, allowing plaintiff nothing for rent, holding, with defendant's plea, that he was not a tenant of plaintiff, but in possession under verbal contract of sale, finding for plaintiff $69.45 on the open account, and $10.70 for the advances, making a total for plaintiff of $80.15. The court, on defendant's counterclaim, awarded him as damages to his crop $50, for improvements on the farm on the charge of "work and labor done" $141.60, and vindictive damages, $50, a total of $241.60 for defendant, and, after deducting the amount found for plaintiff, gave judgment for defendant for $161.55. In that case the question was not raised by any assignment of error, but it was properly regarded by Judge Collard as fundamental in its nature, and he reversed and remanded the case, stating his reasons as follows: "There is no assignment of error on the point, but we think there was fundamental error, which requires a reversal of the judgment in the county court, and remanding the case. The justice's court had no jurisdiction of the claim of defendant set up as a counterclaim. The justice's court could not litigate a claim, however or whenever set up, that exceeded $200 in amount (Const. art. 5, § 19; Gimbel v. Gomprecht,
The following authorities are also directly in point, viz.: Gimbel v. Gomprecht,
Since the court had no jurisdiction over the counterclaim, it follows that any errors committed in relation thereto are necessarily harmless, and there being no assignment in relation to the claim of the appellee for rents, upon which judgment was rendered, the judgment is therefore affirmed.