Hoffman v. Cleburne Bldg. & Loan Ass'n

• Decision Date: 23 February 1893
• Citation: 22 S.W. 154
• Parties: HOFFMAN v. CLEBURNE BLDG. & LOAN ASS'N et al.
• Court: Texas Supreme Court

22 S.W. 154

HOFFMAN v. CLEBURNE BLDG. & LOAN ASS'N et al.

Supreme Court of Texas.

February 23, 1893.

Appeal from court of civil appeals of second supreme judicial district.

Action by J. J. Hoffman against the Cleburne Building & Loan Association and others. The case was presented to the supreme court on a certificate of the presiding judge of the court of civil appeals, in accordance with section 35 of the act organizing such court, and providing that when a novel issue shall arise in the progress of the case such issue may be referred to the supreme court for determination.

Henry & Green, for appellant. C. V. Myers and Poindexter & Padelford, for appellees.

HENRY, J.

This case comes before us upon a certificate of the presiding judge of the court of civil appeals of the second supreme judicial district presenting the following issue of law: "Where the petition alleges an amount within the jurisdiction of the court, and the defendant pleads that the real amount in controversy is less than such jurisdiction, and has been fraudulently alleged at such greater sum for the purpose of conferring jurisdiction of the case upon such court, is it necessary that such plea be filed before an answer to the merits, or is it sufficient that this issue is presented in an amendment, (filed after an original answer containing a general demurrer and a general denial,) and submitted to the jury with the other issues in the case?" The certificate is in pursuance of the thirty-fifth section of the act to organize the courts of civil appeals, reading as follows: "Whenever, in any case pending before the court of civil appeals of which said court of civil appeals has final jurisdiction, there shall arise an issue of law that is novel, or presenting a question of first impression to the court, and the court of civil appeals shall deem it advisable to present the issue to the supreme court for adjudication, it shall be the duty of the presiding judge of said court to certify the very question to be decided to the supreme court, and during the pendency of the decision by the supreme court the cause in which the issue is raised shall be retained for final adjudication in accordance with the decision of the supreme court upon the issue submitted."

An important preliminary question as to the necessity for the defendant to plead at all the want of jurisdiction in such cases seems to arise. It must be admitted that the decisions of this court have not always been entirely clear nor in perfect harmony with each other on the question. There are early cases which seem to hold that without its being pleaded by the defendant the court may, of its own motion, dismiss a cause when it becomes apparent that the value or amount really involved is not within its jurisdiction, and that the plaintiff's allegations, showing jurisdiction, are fraudulently made. Gouhenant v. Anderson, 20 Tex. 460; Tarbox v. Kennon, 3 Tex. 8. That consent cannot confer jurisdiction over the subject-matter, and that the court should dismiss a cause whenever it ascertains that the subject-matter of a controversy is not within its jurisdiction, are correct propositions. But by what means and under what regulations the court shall ascertain whether or not the jurisdiction exists in the particular case are questions of the first importance. All of the cases seem to concur in the proposition that the "plaintiff's demand as set out in his petition, and not the amount of the verdict, is, in general, the criterion by which to determine the question of jurisdiction." Sherwood v. Douthit, 6 Tex. 224; Bridge v. Ballew, 11 Tex. 269; Graham v. Roder, 5 Tex. 145; Tarbox v. Kennon, 3 Tex. 8; Dwyer v. Bassett, 63 Tex. 276. They likewise concur in the conclusion that the case should be dismissed for the want of jurisdiction "when it appears that the plaintiff, in stating his demand, has improperly sought to give jurisdiction where it did not...