court should find that the giving of said charge by the trial court denied the appellant a substantial right in the trial court and that said charge led to the rendition of an improper judgment in the court below. Rule 62a, 149 S.W., x.; Railway Co. v. Kraft Madero, 212 S.W. 982; Burrell E. C. Co. v. Grisier, 240 S.W. 901; Empire Transfer Co. v. Botto, 232 S.W. 347; Fults v. Waterman Lbr. Co., 217 S.W. 1105; McAdoo v. McClure, 232 S.W. 352; Howell v. West, 227 S.W. 253; Muir v. Stevens, 221 S.W. 1119; Bank v. Combs, 203 S.W. 1169; Panhandle C. E. Co. v. Dowlin, 247 S.W. 876; Railway Co. v. Midland Merc. Co., 216 S.W. 627; Aetna Accident, etc. Co. v. Trustees, 218 S.W. 537; Minnick v. Dryer Motor Co., 227 S.W. 365; Bland v. Cruce, 238 S.W. 722; S.W. Portland Cement Co. v. Bustillos, 216 S.W. 268; Bank v. Friar, 167 S.W. 261; Texas State Bank v. First Natl. Bank, 168 S.W. 507; Railway Co. v. Parke, 169 S.W. 397; Railway Co. v. Elias, 184 S.W. 312; Railway Co. v. Oates, 185 S.W. 1015; Sulzberger v. Hille, 187 S.W. 992; McConkey v. McConkey, 187 S.W. 1100; Railway Co. v. Whorton, 191 S.W. 397; Vakey v. Phelps, 194 S.W. 601; Railway Co. v. Williams, 194 S.W. 1154; Railway Co. v. Jones, 196 S.W. 359; Kennard v. Houston Hotel Assn., 197 S.W. 1139; Railway Co. v. Dawson, 201 S.W. 247; Zeiger v. Woodson, 202 S.W. 166. Under Art. 1862 of the Revised Civil Statutes of 1925, and under the decisions of the Supreme Court construing said statute it was mandatory upon the Court of Civil Appeals in this case to indicate to appellees in what amount said Court of Civil Appeals found the judgment in this case to be excessive, and afford appellee an opportunity to remit the excess; and it is erroneous for said Court of Civil Appeals to reverse the case and remand it for a new trial on the excessiveness of the judgment alone.
Dodd Chambers, for appellees. We respectfully submit that the question certified to this Honorable Court should be answered in the affirmative, and in support of their position call attention to the following authorities: Ft. worth D.C. Ry. Co. v. Underwood, 100 Tex. 284 [ 100 Tex. 284]; 99 S.W. 92; Siensheimer Co. v. Maryland Motor Co., 157 S.W. 228; Adair v. Stallings, 165 S.W. 140; Klabunde v. Vogt Hdw. Co., 182 S.W. 715; Sulzberger v. Hille, 187 S.W. 992; Hegman v. Roberts, 201 S.W. 268; Stump v. F.A. Officer Co., 250 S.W. 308; Arts. 7104-7106 Vernon's Statutes. As to the test of jurisdiction see: Dwyer v. Bassett, 63 Tex. 274 [ 63 Tex. 274]; Gulf T. W. Ry. Co. v. Lunn, 141 S.W. 538.
" See Sulzberger v, Hille (Tex.Civ.App.) 187 S.W. 992. We do not go as far as the court in Hegman v. Roberts, supra.
Defendants contend that, where, as in this case, the damages sought to be recovered are of a continuing nature so that they will continue to accrue during the pendency of the suit, jurisdiction of the court is tested by the amount of such damages as have accrued at the time of filing the petition or cross-action, as the case may be, asserting such damages, and that, having rightfully acquired jurisdiction, such court will retain jurisdiction to adjudicate such continuing damages as the complainant may suffer during the pendency of the suit and prior to the final trial thereof. They cite in support of this contention the case of Hegman v. Roberts (Tex.Civ.App.) 201 S.W. 208; Siensheimer v. Insurance Co. (Tex.Civ.App.) 157 S.W. 228; Klabunde v. Hardware Co. (Tex.Civ.App.) 182 S.W. 715; Adair v. Stallings (Tex.Civ.App.) 165 S.W. 140, and Sulzberger v. Hille (Tex.Civ.App.) 187 S.W. 992, also sustain such contention. Having reached the conclusion that the county court was without jurisdiction in this case to adjudicate a claim for damages exceeding $200, or to render judgment for any sum on such a claim, and that our Supreme Court has, if not expressly, at least in effect, so held, we are unwilling to follow the rule announced in said cases.
But, without reference to this point, we are of the opinion that appellant's assignment as to the jurisdiction of the county court should be overruled, for the reason that, the county court having acquired jurisdiction by appeal by reason of the amount in controversy in the justice court not being in excess of $200, it had jurisdiction to adjudicate the claim for additional damages by reason of the alleged deterioration in the value of the goods attached since the appeal. Ry. Co. v. Underwood, 100 Tex. 285, 99 S.W. 92, 123 Am.St.Rep. 806; Sulzberger v. Hille, 187 S.W. 992; Klabunde v. Vogt, 182 S.W. 715. Appellant assigns error on the court's giving the following special charge at the request of appellee: "You are charged that the party who resorts to an attachment process does so at his own peril.