Opinion
No. 1513.
November 15, 1923.
Error from Martin County Court; A. G. Odom, Judge.
Action by A. F. Hudgins against J. P. Butts and another. Judgment for plaintiff, and defendants bring error. Remanded, with instructions.
Clyde E. Thomas, of Big Spring, for plaintiffs in error.
O. W. Fannin, of Midland, for defendant in error.
A. F. Hudgins, defendant in error, brought this suit in the county court of Martin county against J. L. Vaughan and J. P. Butts, to recover on a promissory note in the sum of $240, principal, interest, and attorney fees, and to foreclose a chattel mortgage on certain personal property therein described, given by plaintiff in error to secure the payment of said note. Judgment by default was rendered in favor of defendant in error and against plaintiffs in error for the amount of the note, interest, and attorney fees, and a foreclosure of the chattel mortgage decreed. Plaintiffs in error prosecute this appeal on grounds we need not state, as the case must be disposed of on other grounds.
An inspection of the entire record fails to disclose the value of the personal property upon which defendant in error asserts and seeks to foreclose the chattel mortgage. The county court is a court of limited jurisdiction, and its jurisdiction is fixed by the amount in controversy. It was held by the Supreme Court of this state in Marshall v. Taylor, 7 Tex. 235, and since followed by the courts of this state, that the matter in controversy is not only the debt but the value of the property covered by the mortgage given to secure its payment, and that the foreclosure proceedings comprehend as well the subject-matter of the mortgage as the debt. Because of the limited jurisdiction of the county court, it is necessary to allege as a jurisdictional fact, the value of the property upon which foreclosure is sought.
A failure to allege the value of the mortgaged property upon which the foreclosure is sought is fundamental error apparent of record, whether or not there was an exception, plea, or other objection to the petition on on that ground in the court below. Davis v. First National Bank of El Paso (Tex.Civ.App.) 248 S.W. 119; People's Ice Co. v. Phariss et al. (Tex.Civ.App.) 203 S.W. 66; Stricklin v. Arrington (Tex.Civ.App.) 141 S.W. 189; Bates v. Hill (Tex.Civ.App.) 144 S.W. 289.
For the reason that the record does not disclose the jurisdiction of the county court, the merits of this appeal are not properly before this court for consideration. The case is therefore remanded to the county court, with instruction to dismiss the defendant in error's suit unless the proper jurisdictional facts shall be made to appear to bring the case within the jurisdiction of that court.
Remanded, with instructions.