*1
being considerably
Com-
of the amount
excess
Dennehy Construction
awarded
$250
pany,
Dennehy
noted,
money ($4,063.82)
owing
As
garnishee.
Dennehy
Company un-
Cement
to Cement Products
$4,063.82 owing to
tendered the
them,
alleged der the
Ce-
contract between
Company into
Products
Inc.,
compa-
Company,
nothing
ment Products
with the
contract
its
coming
any
vari-
to it
applicable
extent
completed.
It asked
ny
Further,
either Hillsdale’s debt.
neither the bank
parties asserting claim thereto
ous
Company
nor Cement Products
is com-
Mechanic’s
under said
by garnishment or
plaining
Statutes, etc.,
paid
in and caused
was ordered
$400
Lien
,of
$4,063.82
first out
the'
tendered into
respective
Pursu-
claims.
their
to assert
court.
respec-
request
prayer,
ant
or
to such
voluntarily
parties appeared, either
tive
Also,
any
there be
other item
Conflicting
process.
or after service of
respect
or
error
in the taxation of cost
recovery were
possible
double
Hillsdale,
pointed
same was not
involved,
pointed
out.
any
out
motion for new trial or
garnishment,
Hillsdale,
motion to retax
inspection
costs. An
impound
unsuccessful,
catch
failing to
the bill
transcript
of costs in
in court.
funds tendered
any part
specifically
any particular
disclose that
gar
item
improper
In that situation
of cost
or excessive.
discharged
Hence,
with
nishee entitled
no error is
shown
correction.
ad
attorney’s fee of
Woodson,
$250
costs and
651;
Allen v.
11 Tex.
p. 386,
In our
'Hillsdale.
secs. 88
judged same
and 89.
Jur.
sus
and authorities
opinion, the evidence
assigned
For the reasons
judgment
respect. Frazier
judgment in that
tain
of the trial court is affirmed.
Corp.,'
Chapman Minerals
& Co. v.
Jelke
Tex.Civ.App.,
1101; National
Plartford,
Mc
Co. of
Conn.
Ins.
Fire
Co.,
192 S.
Evoy Furniture
270;
Printing Co. v. Dines
Bennett
W.
Co., Tex.Civ.App.,
into fol prejudice, or affect Hillsdale valid reasons: There were lowing point prior in time to the assignments garnishment running of the writ Hillsdale, and the debts secured Casualty (the General assignments one to $400, Company amounting and the other $5,282.18) Tyler amounting to Bank *2 payable Croft, and Byerly’s Mrs. the full husband, ownership ceased former passed by Byerly which notes to Mrs. items, pleaded inheritance. Moritz four two of to Croft and two advances sums paid for request his account at his as cred- its al- notes. These items were by lowed the court and not here in con- troversy. Additionally Moritz on- of, ly by way items, set-off two $175 $32.50,respectively; the being travel- expenses ing of Moritz at the incurred re- quest of Byerly Mrs. promise of reimbursement, in accompanying Croft's body Houston, Texas, Wellsville, from Ohio, burial for place; being second the balance due on a note Byerly, Mrs. by chattel mort- gage on a watch which purchased she had from a jeweler, the note mortgage having the purchased by Moritz from payee. Exceptions to the were items, sustained to these two after the court had all heard the offered testi-
mony; rendered favor Byerly of Mrs. $407.55, for being the bal- ance due on the after allowing notes credits, first four stated but disallowing the two other items. Moritz appealed has assigning error action of sustaining exceptions these these two items. to the diction toas Moritz states his brief that in sustaining to controversy, the two items judge expressed view “that whatever prior the law adop have been Rules, tion of the New precluded now by Rule 97 from invoking a Sedberry Amacker, R. P. & Williams and set-off or counter claim unless same inis appellant. Angelo, of San for independent such amount that an suit can Clyde Vinson, Angelo, for of San be However, thereon in the same court.” pellees. Byerly Mrs. asserts her brief that she does not and never did contend McClendon, justice. changed that the New Rules the law in chief any respect simple regards jurisdiction “for the involves the sole reason that the (here whether court) district by district court is fixed Constitution a counterclaim which Texas, and is except immutable by amount below minimum * * * Constitutional and the tion, method of amendment arising out of the Court has usurped never plaintiff’s claim, same transaction as power.” only proposition Not is this character warranting off; correct, only but it being pleaded set is clear from way the act con set-off, prayer for ferring without rule-making power affirmative re- Court, lief. 1731a, The facts are Byerly Ann.Civ.St., these: Vernon’s Art. only Mrs. (her joining “practice husband pro her matters pro forma) against Moritz act, cedure” were promissory included and that principal *3 * * lands. appellant note has held from of of Texas the State the date of its until the execution case only, hav- rule procedural a Rule 97 is was tried. The contention of D. Robin- T. of caus- one suit ing reference to in son, by trial, pleadings and the and way counterclaim by es of action of is that this note and ex- was satisfied fea- new some cross-action. It introduced tinguished by the sale of lands for the which prac- liberalized and otherwise tures executed, the note sued on was and that as the respects. In so far tice its satisfaction was a of the consid- therein, it jurisdiction is is word used by eration received Robinson for the of sale The existing law. declaratory of the land to Garrett.” This seems to have rather purpose broaden of the rule is to only been the controversy real and right than of counterclaim restrict the parties, the namely whether the counter- here concerned Since we are cross-action. paid note had been aas analy- only question jurisdiction with the of conveyed consideration for the rett. The to Gar- land inquiry. foreign to our of Rule 97 sis is question jurisdiction of over the cross-action not raised in the ap- was first question presented is exact The peal. trial, Garrett lost in the and apparently arisen oth- seldom appeal that there was a reversal in his fa- contends) jurisdictions; (so appellee er and vor ground on the that the evidence was adjudicated state. never has We are clear not sufficient to show view, however, satisfaction of the that it the counterclaim alleged. note as the sec- in, present appeal adjudicated was and ond trial Garrett was having successful in by ruled the decision in Garrett Rob- is inson, the counterclaim note offset 406, 55 564. The S.W. con- Tex. note on and in recovering sued the ex- appellee that the counterclaim tention of is cess balance in his favor. of transac- note there arose out Jurisdiction the cross-action was on, raised the first time and tion as note sued therefore fell appeal, on that question presented and the different classification from a thus was stated: bar, “Whether be- the district at where there is no connection court, jurisdiction having appellants’ the note on and the de- tween set-off sued by mand lien, reason appeals asserted There were two in the Gar- vendor’s claims. opinions by rett suit and two of has Courts note offset; Appeals. Civil The first latter note amount be- Court, by Judge San Antonio neath the cided Neill pos- and 288, 289; writing, 43 S.W. the second was sessing quality no otherwise which would jurisdiction.” by Court, confer (Emphasis added.) the Galveston decided S.W. 269, 270, opinion Judge writing. The The one, Gill suit was able reviewing by Robinson, length Sam minor son of D. bearing T. Rob- Texas cases inson, upon $300, subject, asserting a note for and fore- particular ques- it, securing on land tion was impression close vendor’s lien one of first a state, by executed Garrett favor of the father and that the district court had by endorsed him to the counterclaim, son. The coun- $349, executed note showing pleading terclaim absence of a proof of Garrett. The con- that Robinson father The in.favor was insolvent. transfer son remanded in permit tended cause order consideration, fictitious, after ma- showing. without to make such Garrett This was right turity, of prior order to defeat the to the time the Court had eventually father became a jurisdiction causes, set-off. The of remanded and writ controversy, party plaintiff granted and the ground of error was “on the finally developed, was between father appeals of the court of civil the practically cause, From the first applicants Garrett. settled stat- pears that Garrett and the father they “were ing that could not show the facts exploiting trap, rat partners in on which essential that court to entitle them and, patent, had obtained a their claim.” the former to enforce Tex. [93 quite acquired We think it clear partners, had certain S.W. such lands 565.] opinions both courts the lien claimed the issue this case. solely that of presented The note answer of described jurisdiction of part land, below consideration for the plaintiffs’ plea with payment not connected pure simple. thereby give way claim in coun- Ap- jurisdiction. of Civil That 'Court terclaim disposed peals counter- treated the regarded so Court jur- in the following language: following from claim is evidenced isdiction over the cause district court quotation: possessing no “and above action asserted included confer quality otherwise which would power to determine any matter of de- constituted diction.” The counterclaim note fense which the law entitled the defendants wholly apart from completed transaction plead against it. The set-off was a de- note, wholly discon- vendor’s fense, which, established, plain- defeated *4 than under Robin- nected therewith other right tiffs’ to recover. This discharged son’s contention that was power pass upon was a of plain- to being of the consideration for land a tiffs’ claim and it not was essential to it that upon sought vendor’s the offset large should have been to be foreclosed. That contention was sole- enough amount given to have the court ly matter defense to the counterclaim a of jurisdiction of it an independent suit to note, plea and had payment, effect a recover equally that, the debt. It is true no relation to the issue being invested with to deter- en- the counterclaim. The notes were plaintiffs’ action, mine cause transactions, separate and tirely distinct power the incidental to determine the complete constituting a itself each question whole indebtedness separate Rob- and distinct cause of action. parties, and to render judgment in favor money buy inson borrowed from Garrett to of him in whose favor a balance found gave land and Garrett his note therefor. to exist. arts. Rev.St. 750-752.” bought Later land from Rob- Garrett note, gave inson and lien, his vendor’s These articles were carried forward part payment fact thereof. The 1325, into the 1911 codification as Arts. money that the borrowed Robinson 1327; and into the 1925 codifica purchase he later sold used land tion Art. cited in substance 2015. The legal Garrett be- created no connection grow do not relate to articles counterclaims tween two transactions. Garrett did ing out of the same That ar transaction. connection, any not claim even such but R.S.1895, R.S.1911, ticle 755 in 1330 in repudiated following quot- rather it. The Williams, Judge who and 2017 R.S.1925. reporter’s ed proposi- from the *5 84, 66, “In general subd. b: a court which § however, have before it the issue we have jurisdiction plaintiff’s the claim has here. The upon suit there was an automo- jurisdiction offset, an it although is be policy bile party insurance in a third jurisdiction.” low the court’s.minimum joined as codefendant with in- the To the the same effect from is surer, upon allegation the he that Am.Jur., 416, p. 221: “The mere fact § claiming some policy. interest in the the up that amount set in a bill of cross party attempted third litigate, by way to jurisdictional the defendant is than the less cross-action, asserted a claim below the amount deprive does not the court of jurisdiction court, of the which he had where, record, diction from the whole it against plaintiff. The latter was assert- pears that dispute the amount in is within ing no claim against party, third con- limit.” sequently issue of set-off was not in- volved. Nor do the cited cases Appellant judgment that asks implications broad quoted excerpt. upon here rendered the disallowed counter by reducing plaintiff’s claims recovery In the to Hardeman district court amount; the extent of jurisdiction their had asserting lost that over amount in con- troversy claims were established uncontra- reason the adoption dicted evidence. sup 1876, The evidence in their Constitution vesting jurisdic- port alone; came from court, tion in plain justice passage aof proof .tiff offering rebuttal, no in statute transferring stood all such to the objection her justice on to defendant’s courts before the cross-action which supporting testimony, based on within the asserted was of the district want court under counterclaims. the 1876 Constitution had been appear, It not therefore, that filed. It only power the case held fully has been developed issue, district court then the matter was proper practice is to to order the case justice remand trial transferred to the thereon. court. holding simply The Fridh case was In so far as court’s es- plaintiff’s claim the amount could the balance due on the notes sued tablishes to that of the cross-action so it not be added deducting credits, after the allowed jurisdiction over the defeat latter. pleas as to affirmed. In so far as it sustained exceptions or as to the following quotation from Chief The Jus- $32.50, two counterclaims of re- Fly’s opinion in Dawson v. Duffie tice [191 spectively, is reversed and the cause holding therein: S.W. states 710] to the trial remanded court for trial on cancel object the cross-action was to issue, and appropriate judg- the rendition of land, to cloud title mortgage on remove adjudication. ment Costs possession. writ land and for a to appellees. taxed sought prosecute appellants to other words try trespass title in the coun- Affirmed action reversed and jurisdic- county ty no court. The court had remanded. aggregate properly them in the tion of and the such a suit the District Court.” struck it out.” 497, Gomprecht, In Gimbel v. The be no “There can reads: motion, was S.W. cited properly brought doubt that the suit was litigate could that defendant before can be magistrate; and there beyond that county court little, option, plaintiff, by crediting thereon might aggre- them in have sued plaintiff’s amount of claim. gate, point The the District Court. plain require too motion is McConnell illustration author- Also cited ity.” Frost, Tex.Civ.App., 45 Alexander, (Judge of Waco then possible It not be to reconcile the writing). there was that by ap- holdings of these several cases plaintiffs, several where the suit was plying any general principle. We abstract separate each of whom had a have cited them illustrative defendant, one of common plication apparently prin- irreconcilable jurisdiction, the court’s claims was within ciples to different factual situations. aggregate the claims could not of all It policy in has been the this state from be taken jurisdiction, to confer multiplicity the earliest times to avoid each of the me- suits. underlying That basis for property, upon personal value chanic’s (Arts. 750-755 R.S. statutes alleged of which so as show 1895) which were first enaited the court. It thereof in They applied salutary at law actions Weyel, previously Pettus v. been held in objective equity which courts of had there- 225 S.W. applied tofore under more cir- restricted party tion of claim held could *6 Gulf, cumstances. Ry. See C. & S. F. Co. acquired by joining the same suit Pearlstone, v. applied S.W.2d 1001. It is party the claim of another was with- in that class of joind- cases authorize jurisdiction, er privilege (venue) grew out of same claims transac- toas which venue would not other- tion. The suit there father for wise lie county brought, where suit is himself jurisdiction, an amount below the court’s with a claim to which such venue and as next friend for his lie. Middlebrook v. David Bradley Mfg. son, minor amount within Co., 26 S.W. and numer- diction, injuries personal inflicted on subsequent ous holding. the son. To the same effect is the recent We see principle distinction Falls, case Long Wichita v. 176 S.W.2d entertaining jurisdiction of a claim below 936, Chief writing Alexander Justice the court’s amount when Court. pleaded by way of set-off a matter “as hapd, the other held in the adjust defense” in order to respective Culton, 1852, early Ferguson case of parties liabilities of the thereby avoid Hemphill 283 (Chief writing), Tex'. Justice suits, multiplicity quoting syllabus: from the “Where a cred- plaintiff of below the itor has several notes objective. the court for a like This was debtor, due, though they be all express holding in Garrett v. Robin- right, being same each son—-a holding essential to the decision Peace, tion of a but in the Justice reached. aggregate exceeding jurisdiction, The motion is overruled. may suit before a Justice them, Peace each of Overruled. notes sum each, rights were expressly substantive excluded attorney’s fees, Furthermore, besides executed therefrom. Moritz order to remove pellant field entirely (Garrett) matter was made to him specific D. T. this of provides that: Robinson expressly doubt, wife for Robinson’s Rule to ex- the cash pellant partnership not he construed “These shall advanced rules the courts purchase tend or limit some
Notes
notes his opinion Supreme wrote the Court application tions in for writ his case, the Garrett was one of the clearest liquidated of error: “Both claims thinkers most accurate who writers past due and in right, have ever sat that bench. It is incon appellants though had not waived their predicated he ceivable that have his would they be available right object, would one degree decision a equally though they against other grew the two notes out same trans transaction/' grown out same action, stating in without so added.) passing an is- (Emphasis expressly Art. 755 bearing upon and citing involved) in (not here connection with sue subject. canWe but conclude that the stated: charge, Court case is ruled instant decision in that charge, of two “Under the verdicts rendered, case. (1) viz.: In fa- must have been plaintiff against Robinson vor of Sam were view that we the two Even for the amount of the note fendants on, sued grew notes in Garrett case out of the lien, foreclosure of if the note transaction, question and that the same paid; (2) in pleaded in had been set-off state, impression bar was one of in this against D. T. favor of defendants Robinson conclusion, we would reach same for the set-off, after for the balance deduct- following 755, R.S.1895, reasons: Art. on, ing amount of the note sued jurisdictional, merely procedural not a but paid.” note had not been first-named (joinder) enlarged It neither nor statute. clearly shows that any court, diminished the regarded entirely two notes Court merely excepted general from the rules action, separate distinct causes of misjoinder (such contract, as tort and treated the claim of Robinson that etc., liquidated unliquidated, claims) amount of the note set-off growing included as a counterclaims out of the same 593 Appellees’ Rehearing. a counterclaim Motion Hence transactions. jurisdiction, al- beyond the court’s amount quotes The motion excerpt same transaction growing out of Higgins Lloyds, v. Standard Tex.Civ. claim, plaintiff’s App., (referred 146 to in S.W.2d Art. original opinion): “It the estab with those lished rule in this here state a defendant concerned We cannot, defendant, by filing cross-action, against whom counter which one claim, recovery, reconvention, litigate ad- plaintiff to have seeks asks entirely judicated independent foreign claim different and an main action for amount over below the court’s Lloyds, jurisdiction. has no amount v. Tex. (Higgins Standard Hardeman [& 103; Civ.App., v. 143), Morgan, 48 et or where one Fridh Son] S.W.2d Tex. Giberson, al. v. adjudicated seeks have like 563; (City Duffie, Tex.Civ.App., Dawson v. codefendant of Dallas Rutledge, 534). S.W. 709.” Tex.Civ.App., 258 S.W. Taken in the abstract and removed from rule context, excerpt supports seemingly C.J.S., Courts, p. at bar stated in 21 is thus appellees’ not, contention. The court did