Gimbel v. Gomprecht

• Decision Date: 04 May 1896
• Citation: 35 S.W. 470
• Parties: GIMBEL et al. v. GOMPRECHT et al.
• Court: Texas Supreme Court

35 S.W. 470

GIMBEL et al. v. GOMPRECHT et al.

Supreme Court of Texas.

May 4, 1896.

Certified questions from court of civil appeals of First supreme judicial district.

Action by M. Gimbel & Son against J. Gomprecht & Co. From a judgment in favor of defendants, plaintiffs appealed, and questions were certified from the court of civil appeals.

H. C. & Cone Johnson, for appellants. Duncan & Jones, for appellees.

BROWN, J.

The court of civil appeals for the First supreme judicial district has certified to this court the following statement and questions:

"Plaintiffs sued defendants in the county court to recover the sum of $764, upon an open account alleged to be due, and sued out an attachment, and levied on defendants' goods. The goods were sold under order of court for $885, and the money was deposited in court to await the result of the suit. Defendants filed a plea seeking to abate the attachment, upon an allegation made under oath that the debt was not due when the suit was brought and the attachment sued out, and to have the money realized from the goods released to them. They also pleaded in reconversion for actual and exemplary damages, on the ground that the writ was obtained wrongfully, maliciously, and without probable cause. The actual damages alleged consisted of the difference ($797.21) between the actual value of the attached property ($1,682.21) and the amount for which it had been sold; and the exemplary damages were alleged at $966, making the total damage alleged $1,763.21 But defendants admitted that they owed plaintiffs the account sued on ($764), and that it was due when they filed their answer, and admitted plaintiffs' right to have that sum deducted from the actual damages alleged, and therefore prayed that, after that should have been done, they have judgment for the balance, of $33.21, and for the exemplary damages, $966. Plaintiffs excepted to the plea in abatement of the attachment, on the ground that the writ could not be abated in such manner, and also excepted to the plea in reconversion on the ground that the county court had no jurisdiction.

"The following questions are certified to the supreme court for its decision: First. Did the county court have jurisdiction of the cause of action for damages set up by the plea in reconvention? Second. Could the attachment be abated, and the money released, in the manner attempted?"

Answer to first question: The county court has no jurisdiction to try a civil cause in which the matter in controversy exceeds $1,000. Const. art. 5, § 16. The plea in reconvention filed by the defendants in this case was in effect a suit by them against the plaintiffs, and the amount in controversy was the damages claimed in that plea; that is, the actual damages, $797.21, and exemplary damages, $966,—aggregating $1,763.21. The fact that the debt of the plaintiffs was admitted to be due, and agreed to be taken as a credit upon the claim set up by the defendants, did not lessen the amount which was put in controversy by that plea. Under their plea, the defendants must establish their damages before they are entitled to have the amount of the plaintiffs' debt satisfied by their damages so recovered. By the proceeding here sought to be maintained, the court inquired into the plaintiffs' liability for the damages to the amount of $1,763.21, upon the ground that, when established, that amount would liquidate the indebtedness of the defendants to the plaintiffs. The defendants' claim for damages did not operate as an extinguishment of the plaintiffs' debt, nor did the plaintiffs' debt operate as an extinguishment pro tanto of the defendants' claim for damages. The two classes of claims were not such as of themselves would have the effect to extinguish each other until ascertained by the court, and by its judgment thus applied. Counsel for appellees cite, in support of the judgment of the court below, the case of Dalby v. Murphy, 25 Tex. 354. In that case the defendant was sued in the justice's court upon two notes, amounting to $73.75. He pleaded that he had in payment of the notes sold to the plaintiff a horse for $125, and that plaintiff was indebted to him in the difference between the amount of the two notes and the price of the horse. This was a very different case from the one now before the court. That case was rightly decided, because the sale of the horse had extinguished the notes, and left a balance due to the debtor, of which amount the justice court had jurisdiction. It came strictly within the rule often applied by this court that where the original indebtedness was a sum exceeding the jurisdiction of the justice court, but had been reduced by payments or credits to a sum within the jurisdiction of that court, the court might entertain jurisdiction of a claim for the balance due. Appellees' counsel also cite Mulhaul v. Feller, 1 White & W. Civ. Cas. Ct. App. § 1162, in support of the judgment of the court. From the report of the case, we cannot tell what the facts were upon which that judgment was sustained. As reported, the case is not in point as authority for the ruling of the court below. We therefore answer that the county court had not jurisdiction to entertain the defendants' plea in reconvention in this case,...