The jury had no power or authority to divide or apportion the total damages as between the defendants, and their action in attempting so to do should be treated as surplusage and that portion of the verdict disregarded and a judgment entered which would express the legal rights of the plaintiffs upon the facts found by the verdict. San Antonio A. P. Ry. Co. v. Bowles, 88 Tex. 635; Post v. Stockwell (N.Y.), 34 Hun, 373; Missouri, K. T. Ry. Co. v. Vance, 41 S.W. 167; Baker v. Wofford, 9 Tex. 515; Ft. Worth N. O. Ry. Co. v. Enos, 39 S.W. 1095; Currier v. Swan, 63 Me. 323; Chils v. Gronlund, 41 Fed., 505; Central Pass Ry. Co. v. Kuhn, 86 Ky. 578. KEY, ASSOCIATE JUSTICE. —
But in this case a joint verdict was rendered against the three defendants therefore the judgment should be joint. Eames v. Stevens, 26 N.H. 117; Pickle v. Byers, 16 Ind. 383; Ft. Worth N. O. Ry. Co. v. Enos, 15 Tex. Civ. App. 673, 39 S.W. Rep. 1095; Perine v. Deans Shoultz, Tappan (Ohio, 1818) 236; Fields v. Williams, 91 Ala. 502, 8 South. Rep. 808; 11 Enc. Pl. Prac. 856.
"We therefore answer that the county court had not jurisdiction to entertain the defendants' plea in reconvention in this case, the amount being for a sum greater than $1,000." Also see Pennant Oil Gas Co. v. Lightfoot (Tex.Com.App.) 292 S.W. 517; Williamson v. Lumber Co., 36 Tex. Civ. App. 446, 82 S.W. 340; Abilene S. Ry. Co. v. Bagwell (Tex.Civ.App.) 70 S.W.2d 480 (error dis.); Turner v. Larson (Tex.Civ.App.) 72 S.W.2d 397 (error dis.); Brook Mays Co. v. Osborne (Tex.Civ.App.) 70 S.W.2d 755; Nichols v. Ellis (Tex.Civ.App.) 246 S.W. 713; Bishop v. Mount (Tex.Civ.App.) 152 S.W. 442; Rylie v. Elam (Tex.Civ.App.) 79 S.W. 326; Clark v. Smith, 29 Tex. Civ. App. 363, 68 S.W. 532; Pioneer Sav. Loan Co. v. Wilson et al. (Tex.Civ.App.) 39 S.W. 1095; Cox v. Overton (Tex.Civ.App.) 240 S.W. 642; Russell v. Saffold (Tex.Civ.App.) 225 S.W. 281; Pennybacker v. Hazlewood, 26 Tex. Civ. App. 183, 61 S.W. 153. The judgment for plaintiff on the note is affirmed.
ition, and not the amount for which the judgment is prayed, citing Tarbox Brown v. Kennon, 3 Tex. 7; Bridge v. Ballew, 11 Tex. 270; Graham v. Roder, 5 Tex. 145; Dwyer v. Bassett, 63 Tex. 276; Ratigan v. Holloway, 69 Tex. 468, 6 S.W. 785; Bates v. Van Pelt, 1 Tex. Civ. App. 185, 20 S.W. 949; Hoffman v. Cleburne Building Loan Ass'n, 85 Tex. 410, 22 S.W. 154, 155. That the several amounts put in issue by the defendant's original cross-action, even though the defendant prays for a less sum, exceed the jurisdiction of the county court is fully sustained by the Gimbel Case and the Hill Case, supra, and by the following authorities: Nichols v. Ellis (Tex.Civ.App.) 246 S.W. 713; Russell v. Saffold (Tex.Civ.App.) 225 S.W. 281; Bishop v. Mount (Tex.Civ.App.) 152 S.W. 442; Cox v. Overton (Tex.Civ.App.) 240 S.W. 642; Wischkaemper v. Allen (Tex.Civ.App.) 221 S.W. 1037: Smith v. Colquitt (Tex.Civ.App.) 144 S.W. 690; Morrison Co. v. Harrell (Tex, Civ. App.) 148 S.W. 1122; Pioneer, etc., v. Wilson (Tex.Civ.App.) 39 S.W. 1095; Rylie v. Elam (Tex.Civ.App.) 79 S.W. 326; Dixon v. Watson, 52 Tex. Civ. App. 412, 115 S.W. 100; Williamson v. Bodan Lumber Co., 36 Tex. Civ. App. 446, 82 S.W. 340, 341; Pennybacker v. Hazelwood, 26 Tex. Civ. App. 183, 61 S.W. 153, Robinson v. Garrett (Tex.Civ.App.) 54 S.W. 269; Smith v. Dye, 21 Tex. Civ. App. 662, 52 S.W. 981. The defendant, having filed his cross-action for an amount beyond the jurisdiction of the county court, cannot, by amending his claim, and eliminating certain claims for damages, vest that court with jurisdiction.
It is manifest from this whole cross-action that the defendant has set up a counterclaim for damages aggregating $1,400.35, of which he has sought to offset $454.75 against the note sued upon and recover judgment for the further sum of $945.60. The following authorities, we think, sustain the view that the several amounts put in issue by appellee's cross-action exceed the jurisdiction of the county court: Gimbel v. Gomprecht, 89 Tex. 497, 35 S.W. 470; Russell v. Saffold (Tex. Civ. App.) 225 S.W. 281; Bishop v. Mount (Tex. Civ. App.) 152 S.W. 442; Wischkaemper v. Allen (Tex. Civ. App.) 221 S.W. 1037; Smith v. Colquitt (Tex. Civ. App.) 144 S.W. 690; Morrison Co. v. Harrell (Tex. Civ. App.) 148 S.W. 1122; Pioneer, etc., v. Wilson (Tex. Civ. App.) 39 S.W. 1095; Rylie v. Elam (Tex. Civ. App.) 79 S.W. 326; Dixon v. Watson, 52 Tex. Civ. App. 412, 115 S.W. 100. That the error is fundamental, see Pennybacker v. Hazlewood, 26 Tex. Civ. App. 183, 61 S.W. 153; Cain v. Culbreath (Tex. Civ. App.) 35 S.W. 809. Since neither the appellant's petition nor the appellee's answer bring the matters in controversy within the jurisdiction of the county court, the merits of this appeal are not properly before us for consideration.
We have reached the conclusion that appellant's contention is correct, and that the trial court was without jurisdiction. We base this holding upon the following authorities: Section 19 of article 5, state Constitution; Gimbel v. Gomprecht, 89 Tex. 497, 35 S.W. 470; Morrison v. Harrell, 148 S.W. 1122; Pioneer v. Wilson, 39 S.W. 1095; Rylie v. Elam, 79 S.W. 326; Brigman v. Aultman, 55 S.W. 509; Pennybacker v. Hazlewood, 26 Tex. Civ. App. 183, 61 S.W. 153; Dixon v. Watson, 52 Tex. Civ. App. 412, 115 S.W. 100; Cain v. Culbreath, 35 S.W. 809; also cases cited in footnote 37 L.R.A. (N.S.) 611-614. They are all substantially to the same effect; and the reasons for holding that, where the defendant pleads in reconvention a claim for damages in excess of the amount of which the court has jurisdiction and seeks to reduce the same to an amount within the jurisdiction by crediting or offsetting the amount of the plaintiff's demand, the full amount is thereby placed in controversy, are well stated by the Supreme Court in Gimbel v. Gomprecht:
" The following authorities are also directly in point, viz.: Gimbel v. Gomprecht, 89 Tex. 497, 35 S.W. 470; Pioneer, etc., v. Wilson, 39 S.W. 1095; Rylie v. Elam, 79 S.W. 326; Brigman v. Aultman, 55 S.W. 509; Pennybacker v. Hazlewood, 26 Tex. Civ. App. 183, 61 S.W. 153; Dixon v. Watson, 52 Tex. Civ. App. 412, 115 S.W. 100. Since the court had no jurisdiction over the counterclaim, it follows that any errors committed in relation thereto are necessarily harmless, and there being no assignment in relation to the claim of the appellee for rents, upon which judgment was rendered, the judgment is therefore affirmed.