Opinion
No. 750.
March 20, 1915.
Appeal from Gray County Court; Siler Faulkner, Judge.
Action by J. F. Vicars against J. B. Tharp. From a judgment for defendant, plaintiff appeals. Dismissed.
Chas. C. Cook, of Pampa, and Newton P. Willis, of Canadian, for appellant. Synnott Underwood, of Amarillo, for appellee.
This is an appeal from the county court of Gray county, Texas. The appellant, Vicars, sued the appellee, Tharp, in the justice court; but the transcript of the proceedings on appeal from the justice to the county court are not exhibited in this record. The transcript in this court shows the filing of appellant's original petition in the county court, with no indorsement by the clerk of the county court that the same had been filed, or was a part of the proceeding, in the justice court. The third paragraph of said petition alleges that:
"Because of said several items of indebtedness hereinbefore alleged, defendant has damaged plaintiff, after deducting the amount due defendant by plaintiff, in at least the sum of $200," etc.
The aggregate of the items demanded by plaintiff, appellant herein, against appellee, with the aggregate demand of the items alleged as a credit upon the whole demand sued for, leaves a balance, as a cause of action set up by appellant against appellee, of over $240.
There appears in the transcript a pleading of appellee, labeled "Defendant's Original Answer," in the nature of a cross-action, with an aggregate demand of $249.10, constituting different items credited by an alleged indebtedness against appellee in favor of appellant in the sum of $76.75, leaving a balance due of $172.35, for which appellee sues appellant This pleading is indorsed by the county clerk of Gray county as having been filed in the justice court, as well as in his court. The verdict of the jury was for "the sum of $75. 40, in favor of defendant [appellee] and nothing in favor of plaintiff [appellant]." The judgment of the county court, as it appears in the transcript, decrees all costs against appellant expended in the justice court as well as in the county court.
The record exhibiting that this must have been an appeal from the justice to the county court, and that the amount alleged by appellant against appellee in the petition in the county court, upon which the trial was based, was an amount not within the jurisdiction of the justice court, and hence not within the jurisdiction of the county court on appeal, this cause must be dismissed in this court for want of jurisdiction. Texas Pacific Railway Co. v. Hood, 125 S.W. 982; Mo., Kan. Tex. Ry. Co. v. Hughes, 44 Tex. Civ. App. 436, 98 S.W. 415; Missouri, K. T. Ry. Co. v. Simmons, 98 S.W. 416.
If this petition were filed in the justice court, of course that court would not have had jurisdiction; neither would the county court on appeal. If the appellant's demand in the justice court was within the jurisdiction of that court, and this petition is an amendment increasing the demand to the amount stated, the county court, under the decisions cited, likewise would not have had jurisdiction, and in either event this court would not have jurisdiction. The appellee having recovered a verdict and judgment, and the appellant, as plaintiff below, having recovered nothing, and the transcript no doubt correctly disclosing the amount in the petition, upon which the trial proceeded in the county court, we would be unable to assist the appellant, as suggested by Justice Dibrell in the cause of Wells v. Driskell, 145 S.W. 333, by according him any opportunity of an attempted amendment of the transcript. There is likely nothing to amend, so that appellant could show his cause within the jurisdiction of this court.
The appeal is accordingly ordered dismissed.