Clonts v. Johnson

• Decision Date: 18 May 1927
• Docket Number: (No. 780-4773.)
• Citation: 294 S.W. 844
• Parties: CLONTS et al. v. JOHNSON.
• Court: Texas Supreme Court

294 S.W. 844

CLONTS et al. v. JOHNSON.

(No. 780-4773.)

Commission of Appeals of Texas, Section B.

May 18, 1927.

Certified questions from Court of Civil Appeals of Tenth Supreme Judicial District.

Suit by J. D. Johnson against D. B. Clonts, J. B. Holder, and others, begun in justice court and appealed by defendants named to county court after judgment for plaintiff. Judgment for plaintiff, and defendants named brought error to the Court of Civil Appeals. On questions certified to the Supreme Court after reversal by the Court of Civil Appeals and dismissal of plaintiff's cause. Questions answered.

R. W. Cowan, of Mart, for plaintiffs in error.

Morrow & Stollenwerck, of Hillsboro, for defendant in error.

On Certified Questions.

SPEER, J.

This cause is before us upon certified questions from the Tenth District.

The following portion of the certificate will disclose everything necessary to answers to the questions propounded:

"This suit was instituted in the justice court of Hill county by J. D. Johnson, defendant in error herein, against Amos Durham, S. D. Durham, the First National Bank of Waco, and plaintiffs in error D. B. Clonts and J. B. Holder. The parties will be designated as in the trial court. The justice of the peace, apparently at the time of the institution of the suit, entered on his docket the following: `Suit on note and mortgage for $134. Filed December 30, 1924.' The docket of the justice of the peace shows that the case came on for trial on February 13, 1925, and that the plaintiff then dismissed his suit against S. D. Durham and the First National Bank. Said docket shows in that immediate connection the following: `Plaintiff sues for his debt on his note and for foreclosure of a chattel mortgage and for conversion of two bales of cotton described in citation herein against J. B. Holder and D. B. Clonts. Defendants D. B. Clonts and J. B. Holder enter general denial.'

"The case was tried before a jury and the following verdict rendered:

                  "`We, the jury, assess judgment against defendants
                as asked for and for foreclosure of the
                mortgage lien on the cotton described and prayed
                for by plaintiff.     H. E. Jones, Foreman.'
                

"The court entered a judgment on said verdict awarding the plaintiff a judgment against Amos Durham, D. B. Clonts, and J. B. Holder in the sum of $135, with interest from date and costs and a foreclosure of his mortgage on said two bales of cotton.

"Defendants Clonts and Holder prosecuted an appeal to the county court. The record of the proceedings in that court is silent with reference to pleadings. There was a trial by jury, a verdict in favor of plaintiff against all the defendants for the sum of $131.72, and judgment in accordance with said verdict. Defendants Clonts and Holder present said judgment to this court for review by writ of error.

"The transcript contains a motion for new trial filed in the county court by these defendants and an order of the court overruling the same. No other or further assignments of error were filed. None of the assignments presented in said motion for new trial are copied in the brief. This court has consistently held that only fundamental error appearing on the face of the record will be considered when no assignments of error are copied in the brief. We therefore considered only such of the propositions presented by defendants as related to the jurisdiction of the justice court, in which this suit originated. Certain recitals in the judgment rendered by the justice court in this case show that the two bales of cotton upon which that court rendered a judgment of foreclosure were within the aggregate more than $200, the limit of jurisdiction in that court. There is no contention that these recitals were untrue. On the contrary, the statement of facts brought up with the transcript in this case shows affirmatively that said cotton in the aggregate did exceed in value the sum of $200. This court considered that said recitals in the judgment constituted a part of the `face of the record,' and, based thereon, reversed the judgment of the county court and dismissed the cause. * * * "We therefore deem it advisable to present for your determination the following questions of law:

"First Question. Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, should the Court of Civil Appeals confine its consideration of the case to fundamental error apparent on the face of the record, or should it in the exercise of its discretion, if the ends of justice require, consider the points or propositions presented in such brief as ground for reversal, notwithstanding such failure?

"Second Question. Does the rule that the record must show an affirmative allegation that the value of property upon which foreclosure of a mortgage lien is sought in a court of limited jurisdiction is within the jurisdiction of such court apply to the transcript of the proceedings in a justice court when appeal is taken therefrom to the county court?

"Third Question. Where the recitals in the judgment of the justice court in a case appealed therefrom to the county court show affirmatively that the property upon which the foreclosure of a mortgage lien is sought and recovered is of greater value than $200, the jurisdictional limit of said court, and such transcript fails to disclose that any value of said property was alleged in the pleadings, does fundamental error appear on the face of the record?

"Fourth Question. Does it appear from the record in this case that the cause of action asserted by plaintiff, Johnson, against defendants Clonts and Holder was for conversion only, and that the same was separable from his action for foreclosure, and that the justice court had original jurisdiction to hear and determine his demand against said defendants and to render a valid judgment thereon?"

The questions should be answered categorically as follows:

First. Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record. Its authority to revise the action of the lower court is limited to those questions (not fundamental) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power. While it is not necessary that the assignments required to be filed below should be literally copied into the brief, yet they must be at least substantially reproduced. Rule 32, Court of Civil Appeals, and rule 101a, district and county courts; Seby v. Craven Lumber Co. (Tex. Civ. App.) 259 S. W. 1093; Equipment Co. v. Luse (Tex. Civ. App.) 250 S. W. 1104; Green v. Shamburger (Tex. Civ. App.) 243 S. W. 601; Carey v. Tex. Pac. Coal & Oil Co. (Tex. Civ. App.) 237 S. W. 309; Green v. Hall (Tex. Com. App.) 228 S. W. 183. There is a substantial difference between an assignment of error and a proposition submitted thereunder. The one complains of some action of the court, and the other merely sets forth the reasons why such action is erroneous. It takes the assignment to reach the ruling, and it is the ruling that is to be reviewed by the appellate court. Roberson v. Hughes (Tex. Com. App.) 231 S. W. 734; McDaniel v. Turner (Tex. Civ. App.) 269 S. W. 496; International, etc., Ass'n v. Griffing (Tex. Civ. App.) 264 S. W. 263; Ford v. Flewellen (Tex. Civ. App.) 264 S. W. 602; Chenault v. Honaker (Tex. Civ. App.) 261 S. W. 825.

Second. The rule so often repeated in the decisions that the record must show affirmatively that the amount in controversy in the trial court was within the jurisdiction of that court does not apply to the transcript of the proceedings in a justice court when appeal is taken therefrom to the county court.

Jurisdiction under our system in most cases is determined by the amount in controversy, and this is true whether the suit be in the district court, the county court, or the justice court. All of our courts under our scheme of jurisdictions are courts of limited jurisdiction, yet all of the courts named are courts of general jurisdiction within the limits of the Constitution fixing jurisdiction.

In all cases the pleadings determine the amount in controversy, and therefore the jurisdiction of the particular cause of action asserted. Dwyer v. Bassett, 63 Tex. 274; Hoffman v. Cleburne, etc., Ass'n, 85 Tex. 409, 22 S. W. 154.

It is not the truth of the allegations that determines the jurisdiction, but it is the amount claimed in the petition (or other jurisdictional fact) that controls such matter. A petition asserting an amount or fact bringing the case within the jurisdiction of the trial court confers jurisdiction on that court, even though the evidence may show, and the court may find, against such allegation. Dwyer v. Bassett, supra; Hoffman v. Cleburne, etc., Ass'n, supra. Of course, if such allegation showing jurisdiction is fraudulently made for the purpose of conferring jurisdiction, that fact may be put in issue by a proper plea, and the jurisdiction will then depend upon the verdict or finding upon such contested issue. But in the absence of such contest of jurisdiction, the allegations of the petition will be accepted as conferring jurisdiction.

Under our statutes the pleadings in the justice court in civil cases are oral, but it is nevertheless true that such pleadings determine the amount in controversy precisely the same as do written pleadings, for whether the pleadings are written or oral they are essential to a recovery and they necessarily determine the extent of the...