187 S.W. 689 | Tex. App. | 1916
The first assignment of error complains of the action of the court in overruling the general demurrer and the special exception challenging the jurisdiction of the court referred to in our statement of the case. The proposition urged in support of the claimed error is that the measure of appellee's damages as pleaded was the difference in value of the lot she received and the amount she paid therefor; and, it appearing from the pleading that such amount was $450, the district court was without jurisdiction to determine the controversy. The first inquiry then is: What sum was appellee entitled to recover as damages under the facts urged in her petition? There was at one time some confusion and perhaps some difference in the adjudicated cases in the Supreme Court on the issue presented; but there has, as we understand the cases now, been no controversy about the rule since the holding in George v. Hesse,
The measure of appellee's damages as disclosed by her pleading being that stated, and it appearing therefrom that such amount was not cognizable in the district court, should the trial court have sustained the general demurrer or the special exception by authority of both of which the issue was presented? Appellee declares that the demurrer and exception were properly overruled for the reason that the jurisdiction of the district court was to be determined by the amount declared in the petition to be the damages suffered, unless it was alleged and proven by appellant that such amount was claimed for the fraudulent purpose of conferring jurisdiction upon the trial court. The pleadings did, as we have shown, declare that appellee had been damaged $1,500 by the false representations concerning appellant's ownership of the lot pointed out, and sought recovery for that amount. The pleadings also disclosed that appellee paid $850 for the lot, and that its actual value was $450. The Supreme Court was at one time also in disagreement on the issue thus presented; but, as in the case of the issue just discussed, the decisions have been uniform since the case of W. U. Tel. Co. v. Arnold,
Accordingly, it becomes our duty to reverse the judgment and dismiss the case; for as said in Pecos North Tex. Ry. Co. v. Canyon Coal Co.,
"The defendant had a right to have the issue involved * * * 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."
Reversed and dismissed.