Ft. Worth & D.C. Ry. Co. v. Underwood

• Decision Date: 09 January 1907
• Citation: 99 S.W. 92
• Parties: FT. WORTH & D. C. RY. CO. v. UNDERWOOD.
• Court: Texas Supreme Court

Page 92

99 S.W. 92

FT. WORTH & D. C. RY. CO. v. UNDERWOOD.

Supreme Court of Texas.

January 9, 1907.

Certified Question from Court of Civil Appeals of Second Supreme Judicial District.

Action by W. L. Underwood against the Ft. Worth & Denver City Railway Company. From a judgment in favor of plaintiff, defendant appeals to the Court of Civil Appeals. Heard on certified question. Affirmed.

See 98 S. W. 453.

Spoonts & Thompson, Fires & Decker, and Marshall Spoonts, for appellant. S. G. Tankersley and E. E. Diggs, for appellee.

WILLIAMS, J.

Certified question from the Court of Civil Appeals for the Second District, as follows:

"The above styled and numbered cause is now pending before this court on a motion for rehearing, and we deem it advisable to certify to your honors for decision the question whether or not the county court of Childress had jurisdiction over this cause at the time it rendered the judgment herein appealed from. On July 3, 1905, appellee, as plaintiff in the county court of Childress county, filed his third amended original petition, seeking to recover damages for alleged injuries to a shipment of cattle, wherein he prayed judgment for the sum of $940.40, together with interest and costs of suit, his cause of action having accrued, according to the allegations of this pleading, on August 25, 1903, so that the aggregate damages then claimed amounted to more than $1,000. It was upon this amended pleading that the trial was had, and the record does not contain any of the abandoned pleadings of the plaintiff; nor does it disclose when they were filed, except the second amended original petition, which was filed January 5, 1904."

For most purposes an amended petition which sets up no new cause of action takes the place of the original petition, and relates back to the time of the institution of the suit. Tolbert v. McBride, 75 Tex. 95, 12 S. W. 752. The claim which it asserts is to be regarded as if asserted when the suit was brought. The question as to the amount put in controversy in this case by the plaintiff's pleadings must therefore be determined as if it arose upon the original petition. Thus tested, no more was claimed than the court then had jurisdiction to adjudge. The date of the institution of the suit is not shown by the certificate, but it appears that it must have been before January 5, 1904, when the second amended petition was filed. Up to that time 6 per cent. added to the amount of damage alleged to the cattle...