Cleckler v. American Motors Finance Co.

• Decision Date: 31 January 1930
• Docket Number: (No. 660.)
• Citation: 24 S.W.2d 514
• Parties: CLECKLER v. AMERICAN MOTORS FINANCE CO.
• Court: Texas Court of Appeals

Page 514

24 S.W.2d 514

CLECKLER v. AMERICAN MOTORS FINANCE CO.

(No. 660.)

Court of Civil Appeals of Texas. Eastland.

January 31, 1930.

Error from Taylor County Court; Tom K. Eplen, Judge.

Suit by Wayne O. Cleckler against the American Motors Finance Company. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

W. E. Lessing, of Abilene, for plaintiff in error.

S. A. Williams, of Dallas, and Frank E. Smith, of Abilene, for defendant in error.

LESLIE, J.

This suit was filed in the county court of Taylor county by Wayne O. Cleckler against the American Motors Finance Company, seeking to cancel two promissory notes, one for $214.20, secured by a chattel mortgage on a Franklin car, alleged to be of the value of $750, and the other note being for $299.25, secured by a like lien on a Cadillac car valued at $800. Upon a plea in abatement, the suit was dismissed by the trial court on the ground that the county court had no jurisdiction; the amount involved appearing to be in excess of the maximum of the jurisdictional amount given to county courts. From that judgment error is prosecuted to this court. The parties will be designated as in the trial court.

The plaintiff's specific contention as evidenced by his petition is that the two promissory notes have been paid and discharged by him, and that the defendant still retains possession thereof, threatening to sue him thereon in Dallas county, where the notes are made payable, and to there foreclose the lien on the Franklin car.

In one count he alleges that the $299.25 note (secured by a lien on Cadillac car) was paid in this way: First, three installments, aggregating $89.79, paid in cash; and a balance of $209.51 by delivering to defendant the Cadillac car in full satisfaction thereof. It was further alleged that this note involved a loan of but $250; that the balance of $49.93 thereof (included in the face of the note) represented usurious interest charged him by defendant, and forming the basis of his claim here for recovery of $99.86, the double of the amount of interest alleged to have been so paid.

As to the $214.20 note (secured by lien on Franklin car), the plaintiff alleges a payment thereof in the following manner: The first four installments of $21.42 each by cash, aggregating $85.68, leaving a balance of $128.52. (This note was alleged to be for a loan for but $175, and the balance thereof amounting to $39.20, included in the face of the note, represented usurious interest, charged in that instance not yet paid, but which should be deducted from the face of the note.) That the deduction of this sum from the balance of $128.52 would leave the sum of $89.32 still due defendant by plaintiff. That this amount should be satisfied by the application thereto of the $99.86, the double of the usurious interest paid in discharge of the Cadillac note. The result of such an application will bring the defendant in debt to plaintiff in the sum of $10.44, for which judgment is also sought in this suit.

A further count in the petition, forming the basis of an alternative plea, is to the effect that, if the plaintiff is mistaken in the defendant's having taken the Cadillac car as a discharge in full of the balance due on the $299.93 against that car, then it is his contention that the Cadillac car was converted by the defendant, and that he is entitled to a judgment for the return thereof, and in the alternative for the value of the same, alleged to be $800.

An examination of the allegations of the petition and the prayer therein convinces us that this is not a suit for the foreclosure of a chattel mortgage. It is not that character of case in which the jurisdiction of a county court in a suit to foreclose a chattel mortgage is determined by the value of the mortgaged property. In determining the jurisdiction of the county court in...