277 S.W. 446 | Tex. App. | 1925
This case arose in the justice of the peace court in precinct No. 2, of Reagan county, Tex., upon the application of appellant for a distress warrant before Hon. W. D. Riser.
In his application appellant alleged that appellee was indebted to him in the sum of $200 for rents on certain premises in Reagan county, by virtue of a lease contract entered into by the parties for a period of six months, beginning the 20th day of November, 1924, at a monthly rental of $40 per month. The distress warrant was applied for on November 21, 1924. Distress warrant was issued and return made thereon showing seizure of certain personal property of appellee thereunder.
Trial before a jury resulted in a verdict for appellant on the lease contract in the sum of $90. Court entered judgment of appellant for said sum and costs, establishing landlord's lien, foreclosing said lien on the seized property, and ordered a sufficient amount of same sold to satisfy the judgment rendered. Appellee gave notice of appeal to the county court, and filed appeal bond, which was approved. Appellee, on the 17th day of February, 1925, filed a motion in county court to dismiss the cause setting up the following grounds:
(1) That the judgment rendered by the justice of the peace was not the judgment intended by the jury which tried the case; (2) that it was contrary to the verdict of the jury; (3) that the property on which the lien is foreclosed is exempt property; and (4) that the pleading did not give the justice court jurisdiction of the cause. This motion was sustained by the county court, and ordered the case dismissed, from which action of the court appellant has appealed.
Our Supreme Court, in Pecos N. T. Ry. Co. v. Canyon Coal Co.,
"When the amount to which the plaintiff appears from his allegations to be entitled is a fixed sum, and is beyond that which the law has empowered the court to adjudicate, the plaintiff should not be permitted to enter a fictitious credit for the purpose of giving jurisdiction."
In the present case we find appellee alleging that appellant is justly indebted to him for certain rents, and, as a basis for such indebtedness, alleges a lease for the period of 6 months at the rate of $40 per month, without any allegation as to any payment or payments having been made upon said lease contract. While it is true that he alleges the indebtedness to be only $200 and prays for a judgment for only that amount, still, we think the allegations, taken as a whole, conclusively show the amount due appellee to be $240, and therefore beyond the jurisdiction of the justice court, and certainly would this be true in the absence of any allegation of payments on credits, and to hold otherwise would either be allowing appellee to remit a portion of the amount due him or to enter a fictitious credit for the purpose of giving jurisdiction.
It may be said that a person should not be heard to complain as to the jurisdiction of a court when its jurisdiction is a sum less than the sum which the party really is indebted, but the Supreme Court, in the case of Pecos N. T. Ry. Co. v. Canyon Coal Co., supra, said that —
"The defendant had a right to have the issue involved in the case tried in a court of competent jurisdiction, and he cannot be deprived of that right by an act of his opponent to which he does not consent."
The facts alleged in the application showing the appellant indebted to the appellee in a sum greater than the justice court had power to adjudicate, we hold that the county court was correct in sustaining the motion to dismiss for want of jurisdiction.
Affirmed.