Braggins v. Holekamp
| Citation | 68 S.W. 57 |
| Parties | BRAGGINS v. HOLEKAMP et al. |
| Decision Date | 12 March 1902 |
| Court | Court of Appeals of Texas |
Appeal from district court, Kimble county; M. D. Slator, Judge.
Action by E. Holekamp & Co. against M. R. Braggins. From a judgment for plaintiffs, defendant appeals. Reversed and remanded.
W. O. Linden and W. A. Williamson, for appellant. J. B. Randolph and Walter Anderson, for appellees.
There is a jurisdictional question underlying this case. The original petition was filed September 14, 1901, by which appellees sought to recover of appellant $525; being 2½ per cent. commission on $21,000. On October 22, 1901, this pleading was substituted by the first amended original petition, which alleged and claimed 2½ per cent. commission on $20,000, or $500. Upon this petition judgment was rendered for the latter sum in the district court. The district court is without jurisdiction to try cases involving the sum of $500. Garrison v. Express Co., 69 Tex. 345, 6 S. W. 842; Carroll v. Silk, 70 Tex. 23, 11 S. W. 116; Railway Co. v. Rambolt, 67 Tex. 654, 4 S. W. 356. The fact that land was attached at the filing of the original petition does not confer jurisdiction. If it turns out that court has no jurisdiction over the matter in controversy, the auxiliary proceeding necessarily fails. By statute (Laws 1901, p. 47) the civil jurisdiction of the county court of Kimble county became restored in July, 1901.
The judgment is therefore reversed, and the cause dismissed, for want of jurisdiction in the district court.
On Motion for Rehearing.
(April 16, 1902.)
Inasmuch as the original petition showed jurisdiction, and inasmuch as the cause was tried without question as to jurisdiction, and plaintiff might and could have amended, and avoided such question, if it had been made, we think it just and proper to remand the cause, instead of dismissing it. Ross v. Anderson, 1 White & W. Civ. Cas. Ct. App. § 1032; Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S. W. 824, 23 S. W. 91.
Motion granted, and cause remanded.
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