89 S.W. 640 | Tex. App. | 1905
On the 20th day of May, 1904, appellant instituted this suit against appellee in the Justice's Court of Precinct No. 1, Tarrant County, on a note for one hundred dollars ($100), dated September 6, 1899, due five months after date, stipulating for interest at the rate of ten percent per annum from maturity and "ten percent attorney's fees, if collected by law or placed for collection with an attorney." The note was payable to the First National Bank of Corsicana, Texas, and was given for money borrowed from said bank by the appellee O'Reilly, and for which appellant became surety. A few days before the maturity of the note, appellant wrote to the appellee proposing "that he (appellee) pay the debt of one hundred dollars evidenced by the above note, in monthly installments of five dollars." In answer to which, appellee wrote the following letter: "Ft. Worth, Texas, February 2, 1900. Mr. M. J. P. Lacy, Dear Sir: Your letter to hand and contents noted, in reply will say that I am very grateful to you for the terms you have allowed me to pay back the amount I owe you, and I will send you first payment on the 6th day of March, and just as much as I possibly can. Respectfully yours, J. D. O'Reilly." On February 6, 1900, the date of its maturity, appellant paid said note to the Corsicana bank, after which appellee on March 6 thereafter made one payment of five dollars in accordance with the terms indicated in appellant's proposition mentioned. Appellee having made no further payment, suit was instituted as has been before stated.
The trial in the Justice's Court resulted in a verdict for appellee. A like judgment was rendered in the County Court on appeal, and the *285 case is now before us on appellant's appeal from the judgment of the County Court.
In order to an exercise of our appellate jurisdiction in cases like this, it is necessary that the amount in controversy, or the judgment of the County Court, "shall exceed one hundred dollars, exclusive of interest and costs." (Sayles' Texas Civil Statutes, art. 996.) We think it apparent from the foregoing statement that we are without power to entertain this appeal. It is insisted in behalf of appellant that his right of action is founded upon the note above described, and that the letter mentioned takes the case out of the statute of limitation; the contention being that appellant is entitled to recover not only the amount of the principal and interest specified in the note, but also the attorney's fees, and that therefore the amount in controversy is in excess of one hundred dollars. It was held in the case of Faires v. Cockerell,
Dismissed.