Collins v. Martin

• Decision Date: 31 March 1928
• Docket Number: (No. 11949.)
• Citation: Collins v. Martin, 6 S.W.2d 126 (Tex. App. 1928)
• Parties: COLLINS et al. v. MARTIN et al.
• Court: Texas Court of Appeals

6 S.W.2d 126

COLLINS et al. v. MARTIN et al.

(No. 11949.)

Court of Civil Appeals of Texas. Fort Worth.

March 31, 1928.

Rehearing Denied May 5, 1928.

Appeal from Tarrant County Court; David McGee, Judge.

Action by Mrs. E. F. Martin and husband against H. L. Collins and others. Judgment for plaintiffs in the justice court was affirmed in the county court, and defendants appeal. On plaintiffs' motion to dismiss appeal. Motion sustained.

Houtchens & Clark, of Fort Worth, for appellants.

F. M. Bransford, of Fort Worth, for appellees.

CONNER, C. J.

This suit was originally instituted in the justice court of precinct No. 1, Tarrant county on the 23d day of September, 1925, by Mrs. E. F. Martin and husband against Mrs. M. L. Witten and H. C. Collins, to recover the sum of $100. There were no written pleadings in the justice court, but from the transcript of the proceedings of that court, including the citation, we learn that the plaintiffs alleged substantially that at a date named the defendant Mrs. Witten had contracted to sell, and the plaintiffs to buy, a parcel of land situated in Tarrant county; that by the terms of the contract the defendant Witten was to furnish an abstract showing good title, 30 days being allowed to cure defects that might be found; that as an earnest of good faith upon the part of the plaintiffs for the enforcement of the contract, they had deposited the sum of $100 with the defendant Collins, defendant's agent; that the defendants failed and refused to furnish an abstract showing good title, and, after demand from both, they and each of them had refused to return the earnest money.

The trial in the justice court resulted in a verdict in favor of plaintiffs for $100, with 6 per cent. per annum interest thereon from the date of the judgment, to wit, February 25, 1926. The defendants appealed to the county court, in which it substantially appears that by oral pleadings the same issues were presented as in the justice court. Upon the conclusion of the evidence the county court peremptorily instructed the jury to find for plaintiffs in the sum of $100, with 6 per cent. per annum interest thereon from September 25, 1925. The jury so returned their verdict and the judgment was rendered for the plaintiffs in accordance with the verdict, from which judgment the defendants have duly prosecuted this appeal.

Appellees have presented a motion to dismiss the appeal on two grounds: (1) On the ground that appellants' appeal bond is signed by only one lawful surety; and (2) on the ground that but $100, exclusive of interest and costs, was adjudged, and that hence this court is without jurisdiction.

It appears that on the appeal bond, approved by the clerk of the county court, is the name of B. B. Loughry. His only connection with the case appears to be that he was also a surety on the appeal bond of defendants from the justice court, appellants [appellees] cite article 2097, Vernon's Sayles' Texas Civil Statutes, and Daniels v. Larendon, 49 Tex. 216, as sustaining their contention that Loughry is not a qualified surety, and hence that the appeal bond is insufficient. The statute referred to provides that the required bond of the principals shall be signed by at least two good and sufficient sureties. The case in 49 Texas was one in which an injunction had been dissolved, bill dismissed, and costs adjudged against the plaintiff and sureties on his injunction bond. It was held that such sureties could not become sureties on the appeal bond of their principal. In principle, however, it would seem that the following cases lead to a different conclusion, to wit: Long v. Kruger, 4 Tex. Civ. App. 145, 23 S. W. 242; McClelland v. Barnard, 36 Tex. Civ. App. 3, 80 S. W. 841 — both by the Court of Civil Appeals for the Third District, citing a number of cases, among which we find the case of Trammell v. Trammell, 75 Tex. [15 Tex.] 291, 292, and Sampson v. Solinsky, 75 Tex. 663, 13 S. W. 67, both by our Supreme Court.

In the case of Long v. Kruger, it was held that a surety against whom a judgment had been rendered for damages and costs was not disqualified as a surety on the bond given on appeal from the judgment. The surety on the appeal bond in the case of McClelland v. Barnard was the surety on claimant's bond against whom judgment had been rendered. The surety on the appeal bond in the case of Trammell v. Trammell was upon a replevy bond. The surety whose qualification was questioned in the case of Sampson v. Solinsky had become a surety on the cost bond. The judgment in each of the cases was against the principal and surety objected to. We think we may safely follow the cases last referred to and overrule the objection to the qualification of the surety Loughry, without requiring of appellants a new bond, as, under the statutes, we are authorized to do to perfect our jurisdiction.

We are of the opinion, however, that we must sustain the objection that the judgment of the county court does not exceed $100, and hence not within the jurisdiction of this court. Our appellate jurisdiction is limited to civil cases, of which the county court has appellate jurisdiction, "when the amount in controversy or the judgment rendered shall exceed one hundred dollars, exclusive of interest and costs." See Rev. Civ. Statutes of 1925, art. 1819. It is true that, if to the judgment of the county court for $100 there be added the interest and costs also adjudged, the amount would be within our jurisdiction, and it is also true that in certain cases interest is recoverable as damages. See Close v. Fields, 13 Tex. 623; Walkins [Watkins] v. Junker, 90 Tex. 584, 40 S. W. 11; Schultz v. Tessman & Bro., 92 Tex. 488, 49 S. W. 1031. It is upon such cases that appellee relies in resisting appellants' motion to dismiss the appeal. So far as developed by the record, however, no element of damage whatever was alleged by the plaintiffs, other than the mere "detention" of the $100 in controversy in the suit, and there was no cross-action on the part of defendants claiming any sum. Article 5069, Rev. Statutes of 1925, defines the term "interest," in so far as it is necessary to consider in the determination of the question before us, as:

"The compensation allowed by law or fixed by the parties to a contract for the use or forbearance or detention of money."

Interest coming within the purview of this definition is termed in the decisions as interest eo nomine and it is uniformly held that interest of this character is to be excluded in determining amounts necessary for an exercise of our jurisdiction.

In the case of Fort Worth State Bank v. Little, 168 S. W. 55, the plaintiff in the suit alleged a previous deposit of several hundred dollars in the defendant bank, which, it was conceded, had been all repaid except $100, to recover which the suit had been instituted. The bank suffered an adverse judgment and appealed to the county court, where judgment was again rendered in favor of the appellee, and the appeal was prosecuted to this court. We there said:

"Whether the plaintiff's pleading be construed as declaring upon a breach of an express contract of gratuitous bailment, as appellant insists, or as presenting an action of debt for money had and received and not returned, as appellee urges, is immaterial. The action in either case was essentially one for the recovery of $100 and no more. True, the petition closes with the prayer for the recovery of $100 and damages in the sum of $25; but no fact authorizing the recovery of damages other than the mere detention of the money was stated. For this interest alone is recoverable, and the prayer cannot be held to enlarge the real amount in controversy."

We held that our jurisdiction did not attach and the appeal was dismissed.

Of like effect, we think, is the case of Midland Casualty Co. v. Arnott, 199 S. W. 890, by the Amarillo Court of Civil Appeals.

The case of Federal Life Ins. Co. v. Kriton, 112 Tex. 532, 249 S. W. 193, by section A of our Commission of Appeals, was one in which the plaintiff sued in a justice court upon a disability policy in which the prayer was for "judgment for $100, with costs of suit, and such other and further relief in law and equity as he may be justly entitled to." The plaintiff recovered judgment for $100, with interest at 6 per cent. from the date of the trial in the justice court, and on appeal to the county court judgment was rendered in plaintiff's favor for $100, with 6 per cent. interest from the date of the trial in the justice court. Judge German, who wrote the opinion, cited the article of the statute conferring appellate jurisdiction on courts of civil appeals, and said:

"The `interest' meant by the foregoing provision is interest expressly given by statute, frequently designated as interest eo nomine, and not interest sometimes allowed as part of the damages or by way of indemnification. Baker v. Smelser, 88 Tex. 28, 29 S. W. 377, 33 L. R. A. 163. To state the question concisely: If the interest allowed in the present case is interest eo nomine, the Court of Civil Appeals has no jurisdiction of the case."

The court further cited the article of the statutes defining interest, and, after an interesting discussion and citation of numerous cases, concluded that:

"When the full sum...