Burke v. Adoue
| Decision Date | 27 April 1893 |
| Citation | 22 S.W. 824 |
| Parties | BURKE et al. v. ADOUE et al. |
| Court | Texas Court of Appeals |
Appeal from Galveston county court; William B. Lockhart, Judge.
Action by Adoue & Lobit against Burke & Aitchison on a judgment. Judgment for plaintiffs. Defendants appeal. Reversed.
Scott, Levi & Smith, for appellants. James B. & Charles J. Stubbs, for appellees.
This suit was brought in the county court by appellees to recover upon a note signed by appellants, of date January 11, 1890, for $2,500, upon which a payment had been made September 15, 1890, of $1,561.42, and which stipulated for the payment of 10 per cent., as an attorney's fee, in case suit should be brought on it. The balance of principal, and the 10 per cent. attorney's fee, amounted to more than $1,000, and was beyond the jurisdiction of the court. Defendants filed a demurrer and plea to the jurisdiction of the court, and moved that the suit be dismissed for want of jurisdiction. The plaintiffs, without notice to defendants, obtained leave of the court, and filed a first supplemental petition, in response to defendants' motion and plea, in which they remitted "all of the amount sued for, as principal and attorney's fees, in excess of $1,000, and above and beyond the jurisdiction of the county court, and asked judgment for not more than $1,000, shown to be due by the original petition as principal and attorney's fees, and for all legal interest due by the terms of the note." Defendants filed objections and exceptions to the court's order allowing the filing, and to the filing of said first supplemental petition and the said remittitur, and insisted on their plea to jurisdiction and motion to dismiss. These exceptions, as well as the original plea to jurisdiction, were overruled, to which defendants excepted, and the motion to dismiss was denied, to which they also excepted, and the cause was continued by the court to the next term. At the next term the cause was tried before the court, and resulted in a judgment for appellees for $1,050, together with interest and costs.
It will be seen that appellees did not abandon the whole of the claim for attorney's fee, but only so much of it as made their demand exceed $1,000; and the question presented is whether or not the real cause of action could be thus reduced, without the consent of the defendants, so as to bring the amount in controversy within the jurisdiction. It may be true that the claim for the attorney's fee was so distinct from the debt that the plaintiffs might have wholly abandoned it, and have thus obtained a standing in court upon a cause of action which the court had power to adjudicate. But this was not done. The effort was to abandon a part of that demand, and recover the remainder. Upon principle it would seem that this was not permissible. The cause of action upon the note was entire, and was a liquidated demand, as was the stipulated fee. What court had the power to hear and adjudicate it was determined by law. The right to have the cause passed upon in that forum belonged to defendants, as well as to the plaintiffs, and the arbitrary action of neither could deprive the other of its enjoyment. There are authorities which hold that a creditor may enter a fictitious credit on his claim in order to bring it within the jurisdiction of an inferior tribunal; but none of them, so far as we have examined, have given reasons which are satisfactory. It is generally assumed that the indebtedness exists as claimed, and that the debtor has no interest in objecting to a reduction of it, and therefore no right to complain of the attempt thus to confer jurisdiction. But this is a begging of the question. The very thing to be adjudicated is the question whether or not there is an indebtedness, and this question both parties are entitled to have determined by the tribunal to which the law has given jurisdiction over the cause of action. In cases of liquidated demands, which constitute entire causes of action, we can discover no sound principle which would clothe the...
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...jurisdiction of the justice court; and such seems to be the holding with reference to suits filed in the county court (Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S. W. 824), though in the latter case, on rehearing (23 S. W. 91), it is said: "At the request of appellees, the judgment of this c......
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