Guerra v. Weatherly

• Decision Date: 17 May 1956
• Docket Number: No. 3364,3364
• Parties: J. C. GUERRA, Appellant, v. Gerald WEATHERLY, Appellee.
• Court: Texas Court of Appeals

Page 493

291 S.W.2d 493

J. C. GUERRA, Appellant, v. Gerald WEATHERLY, Appellee.

No. 3364.

Court of Civil Appeals of Texas, Waco.

May 17, 1956.

Rehearing Denied June 14, 1956.

Hartley, Lattimore, Alamia & Perkin, Pharr, for appellant.

Gerald Weatherly, Laredo, for appellee.

McDONALD, Chief Justice.

This suit was brought by appellee, as plaintiff below, seeking a writ of mandamus against appellant, as defendant below, commanding defendant as County Auditor to countersign three warrants drawn on the general fund of Starr County, each in the sum of $250, and deliver them to plaintiff, to whom they were made payable. The cause came on for trial in the Starr County Court of Domestic Relations, but was upon motion transferred to the County Court of Zapata County. The County Court of Zapata County sustained plaintiff's motion for summary judgment and ordered the defendant as County Auditor of Starr County to countersign and deliver to plaintiff the three county warrants in question.

Plaintiff is a practicing lawyer and defendant is County Auditor of Starr County. Plaintiff filed this suit by verified petition against defendant to mandamus him to countersign and deliver to him three warrants totalling $750 drawn on the general fund of Starr County. A re sume of the allegations in plaintiff's petition reflects that plaintiff was employed by an order of the Commissioners Court of Starr County to file a suit in behalf of Starr County against the County Auditor thereof (defendant herein) to require him to approve the payment of the salary of a County Road Commissioner appointed by the Commissioners Court, and whose salary the Auditor was refusing to approve for payment. The order of the Commissioners Court employing plaintiff to file and handle the above case provided that he be paid $250 on 16 June 1955; $250 on 1 July 1955, and $250 on 1 August 1955, or a total of $750, as his compensation. The order further provided that the County Treasurer and other proper officers issue plaintiff warrants on the general fund of the county for the $750. The warrants were issued but the defendant County Auditor refuses to countersign them and deliver them to plaintiff. Plaintiff alleges that he filed the suit he was employed to file; that same is pending; that he has diligently prepared same and that his work is reasonably worth $750. Plaintiff prayed for a mandamus to require defendant to countersign and deliver the warrants for the $750 to him.

Defendant filed a plea to the jurisdiction of the court which was by the Trial Court overruled. The cause was thereafter transferred to the County Court of Zapata County, where, as stated, summary judgment was entered for plaintiff, ordering defendant to countersign and deliver the three warrants.

Defendant appeals, contending that: 1) The County Court did not have jurisdiction over this mandamus proceeding to require the County Auditor to perform the ministerial duty of countersigning a warrant. 2) Plaintiff did not sufficiently plead that the claims represented by the warrants had been approved and allowed by the Commissioners Court of Starr County. 3) Plaintiff has not plead that the legal services for which the warrants were issued have been completed. 4) That Starr County should have been a party to the suit. 5) Plaintiff failed to allege any abuse of discretion by defendant in refusing to countersign the warrants. 6) That summary judgment was improperly granted because there was a genuine issue of fact presented by the sworn pleadings.

Defendant in his first point contends that this case was a mandamus proceeding to require the performance of a purely ministerial duty, to wit, the countersigning of the three warrants involved, and that the amount of the claim was not involved nor sought to be adjudicated, and for which reason the District Court and not the County Court had proper jurisdiction.

(1) Plaintiff seeks to mandamus the defendant to countersign and deliver to him three warrants of $250 each, being of the total value of $750. Our Supreme Court has held that the County Court has the jurisdiction to issue writ of mandamus in any case where the matter in controversy exceeds $200 and does not exceed $1,000, exclusive of interest. Johnson v. Hanscom, 90 Tex. 321, 37 S.W. 601, 38 S.W. 761; Repka v. American Nat. Ins. Co., Tex.Com.App., 143 Tex. 542, 186 S.W.2d 977; De Witt County v. Wischkemper, 95 Tex. 435, 67 S.W. 882; Ex parte Bryant, Tex., 285 S.W.2d 719; 12 Tex.Law Review 457. The amount in controversy or the matter in controversy must be determined by the value to the plaintiff of the right which he in good faith asserts in his pleading that sets forth the operative facts which constitute his cause of action. 36 C.J.S., Federal Courts, § 310, p. 528; Dobie Fed. Jurisdiction and Procedure, p. 153; Glenwood Light & Water Co. v. Mutual Light, Heat & Power Co., 239 U.S. 121, 36 S.Ct. 30, 60 L.Ed. 174.

(2) Here the plaintiff seeks to have countersigned and delivered to him three warrants of the total value of $750, which amount is clearly within the jurisdiction of the County Court. Under the authorities cited, plaintiff's cause of action was within the jurisdiction of the County Court.

(3) Defendant's 2nd point contends that plaintiff did not sufficiently plead that the claims represented by the warrants had been approved and allowed by the Commissioners Court; and in his 3rd point contends that plaintiff did not plead that the legal services for which the warrants had been...