150 S.W. 315 | Tex. App. | 1912
Appellee G. A. Lee filed this suit in the county court of Cottle county against appellant Mike C. Le Master and the First State Bank of Paducah, the Quanah National Bank, and the Lone Star Life Insurance Company. The purpose of the suit was to cancel a note for the sum of $200 made by Lee, payable to himself and indorsed to Le Master.
The petition alleged that the defendant Mike C. Le Master represented to the plaintiff that he was agent of the Lone Star Life Insurance Company, and as such agent had authority to sell capital stock for said company, and to accept in payment therefor promissory notes. It is further alleged that the Quanah National Bank, acting by and through its president, recommended to plaintiff that the said Le Master was such agent and had such authority, when in truth and in fact he had no such authority, and the fact was well known to said Quanah National Bank; that, relying upon such representations, plaintiff subscribed for $200 worth of the capital stock of said insurance company, and in payment therefor executed and turned over to the defendant Le Master his certain promissory note in the sum of $200, bearing interest from date until paid at the rate of 10 per cent. per annum, and providing for 10 per cent. attorney's fees if placed in the hands of an attorney for collection, due and payable December 1, 1910; that Le Master had made a pretended sale of the same to the Quanah National Bank. The petition further sets up the fact that the insurance company had failed and refused to issue the stock, that the note was in the possession of the First State Bank of Paducah, and concluded with a prayer for judgment, canceling the note, for costs of suit, and such other and further relief as plaintiff might show himself to be entitled. The Citizens' National Bank of Quanah intervened, setting up that it was the owner and holder of the note which plaintiff sought to have canceled, and prayed for judgment for the amount of *316 the note, principal, interest, and attorney's fees in the sum of $250. Upon a trial of the case the court instructed the jury, first, to find for the defendant First State Bank of Paducah against the plaintiff; second, to find for the Lone Star Life Insurance Company against the plaintiff; third, to find for the plaintiff Lee against the defendants Le Master, Quanah National Bank, and Citizens' National Bank, in so far as it affected the plaintiff Lee; and, fourth, to find in favor of the Citizens' National Bank against the defendant Le Master on his indorsement, the amount of the principal, interest, attorney's fees, and protest fees due upon the note. By proper proceedings, appellant Le Master brings the case to this court and assigns numerous errors, only one of which it will be necessary to consider, which is as follows: "Because the court erred in not sustaining this defendant's general demurrer to plaintiff's first amended original petition."
The first proposition submitted under this assignment is: "This was a suit to cancel the note dated March 25, 1910, in the sum of $200, and the county court of Cottle county had no jurisdiction to try said cause." In our opinion the general demurrer should have been sustained. Appellees contend that the plea in reconvention by the Citizens' National Bank of Quanah, praying judgment for the amount of the note and attorney's fees, aggregating $250, gave the county court jurisdiction of the controversy. In De Witt County v. Wischkemper,
In the instant case the attorney's fees had not accrued because the contingency upon which they were due, viz., the placing of the note in the hands of an attorney for collection, had not happened. Interest is not taken in consideration in determining the amount in controversy in a suit upon a promissory note, and the principal of the note being for only $200, and the purpose of the suit being to cancel it, the amount due thereon at the date the suit was filed fixed its status, and since, under section 16, art. 5, of the Constitution, the county court has no jurisdiction where the matter in controversy is $200 or less, the authorities here quoted are decisive of the question presented. The rule announced by the Supreme Court that the amount put in controversy by the plaintiff's petition and that the allegations in the defendant's pleadings do not control in this respect is reaffirmed in the case of Standefer v. Aultman Taylor Mach. Co.,
It follows from what has been said that, the county court not having acquired *317 jurisdiction to hear and determine the cause, this court has none, and the judgment is therefore reversed, and is here rendered, dismissing the cause.