Nations v. Lindley

BLAIK, J. Appellee instituted this suit in the county court against appellant, declaring upon an alleged note for the sum of $250, of date December 7, 1915, and due on or before November 1, 1916. Appellant answered formally and by a special plea of non est factum as to the note sued upon, and, by special answer, .alleged that he did execute a note to appellant on the date alleged for the sum of $145, but that the consideration for it had failed. Ap-pellee, by a supplemental petition, denied generally these allegations of appellant. Upon the issues thus joined by the pleadings, the case was tried to the oourt without a jury, and the court found that the amount of the note executed by appellant to appel-lee on the date named was $145, and that the consideration for it had not failed, and accordingly entered judgment for the amount of the note, plus interest and attorney’s fees, aggregating the total sum of $291.08. Prom this judgment appellant has perfected this appeal. Five propositions of error, which resolve themselves into only two questions for our determination, are presented by the appellant. The first contention is that appellee’s pleadings are insufficient to support the judgment rendered. The gist of the appellant’s contention on this proposition is that the court, having found that the note executed and delivered by appellant to appellee, dated December 7, 1915, and due on or before November 1, 1916, was for the sum of $145, is tantamount to a finding that the note for $250 sued upon was never executed and delivered by appellant, and that it wfas a forgery, and that appellee did not sue upon a note for $145, nor ask for a recovery thereon in any of his pleadings, and therefore the judgment is void because it does not conform to the pleadings and the findings of fact. This proposition is not sustained. There is no dispute betweeh the .parties as to the execution of a note. They are also agreed as to the transaction in settlement of which the note was executed. The only question in dispute was- the amount of the note executed and whether its consideration had failed. Appellee could not produce the $250 note, stating that he delivered it to the attorney first employed to file this suit, who had since died. Appellee alleged that the note was for the sum of $250. Appellant answered, denying the existence of such a note, but admitting the execution of a note of the same date and in settleipent of the same transaction, for $145, but alleged certain facts as a failure of consideration for the note. Appellee denied these facts and prayed “for the judgment of the court” and “that he have judgment for his said debt, interest, and attorney’s fees, and for all costs in this behalf expended and for general relief.” The effect of these pleadings was to present before the court the issue as to whether the amount due was $250 or $145, and whether the consideration for the debt had failed, and are sufficient pleadings to support the judgment rendered. It is urged in the second place that [164] the county court was without jurisdiction to render judgment on said note for $145, since said amount was Within the exclusive original jurisdiction of the justice court. This proposition is also without merit. From what has been said in our disposition of appellant’s first proposition, we think the suit is one for debt, and the only issue to determine was whether it was a debt for $250 as alleged by appellee, or for $145 as alleged by appellant. 'The law is so well settled that the plaintiffs demand as set out in his petition is the criterion by which to determine the question of jurisdiction that a discussion of the authorities is unnecessary. There is no allegation or plea of any character1 by appellant that the sum claimed by appellee was fraudulently made to confer jiuúsdíction in this case. The question was raised for the first time on motion for a new trial. This court held in the case of Mansfield Mill & Elevator Co. v. Nichols, 265 S. W. 747, that: “The allegations of the petition govern in determining the amount in controversy as affecting the jurisdiction of the court, except where the amount is fraudulently misstated for the purpose of conferring jurisdiction; and fraud upon the jurisdiction, where it does not appear upon the face of the pleadings, cannot be raised by exception. Little v. State, 75 Tex. 616, 12 S. W. 965; 5 Ency. Dig. Tex. Rep. p. 404 et seq.; 19 Ency. Dig. Tex. Rep. p. 513.” This rule is also supported by the following authorities: N. C. & St. L. Ry. Co. v. Bank, 100 Tex. 17, 93 S. W. 431; Bridge v. Carter, 33 Tex. Civ. App. 591, 77 S. W. 245; Hoffman v. Association, 85 Tex. 409, 22 S. W. 154. The. following rule is also well settled in this state in the case of Ablowich v. Bank, 95 Tex. 429, 67 S. W. 79, 881, and by many other cases: “When a suit has been filed in the district court for a sum exceeding $500, but upon the trial it is reduced to a sum below the jurisdiction of the court, it has been uniformly held that the jurisdiction of the court is determined by the amount which was claimed in the petition, and will not be lost by the fact that the amount is reduced upon the trial.” The judgment of the trial court is affirmed. Affirmed.