161 S.W. 18 | Tex. App. | 1913
Henry Beatty brought suit against C. E. McKneely in the justice court of Galveston county to recover *19 $152, alleged to be double the amount of usurious interest he had paid defendant, and on a trial in that court recovered a judgment for $144. Defendant prosecuted an appeal from this judgment to the county court, where the plaintiff amended his pleadings, and therein, in addition to the claim asserted in the justice court, claimed actual damages in the sum of $100, and exemplary damages in the sum of $250. The case was tried before the court without a jury on the 4th day of March, 1913, and resulted in a judgment for plaintiff for the sum of $136, from which the defendant has appealed.
On the day the case was tried the defendant filed a motion to strike out and hold for naught the allegations of plaintiff's amended petition praying for $100 as actual and $250 exemplary damages in addition to plaintiff's original demand. This motion appears, by an order entered upon the minutes on March 4, 1913, to have been overruled by the court, and this action of the court is made the basis of appellant's only assignment of error. It has been so frequently and consistently held that the county court, in a case to be tried de novo on appeal from the justice court, has no jurisdiction to entertain a cause of action on a demand in excess of that of which the justice court had jurisdiction, that we are at a loss to understand why the new cause of action was pleaded, and that the court did not sustain the motion to strike it out when first presented is inexplicable. However, while it appears from the order entered of record that the court refused to sustain the motion, the judgment rendered in favor of plaintiff upon the trial recites that the motion was sustained. We take it from this that the court did not consider the new cause of action for actual and exemplary damages, and that the sustaining of the motion as shown by the judgment, after overruling it as shown by the order, cures the error here complained of. The judgment is affirmed.
Affirmed