Isbell v. Kenyon-Warner Dredging Co.

• Decision Date: 30 April 1924
• Docket Number: (No. 468-4009.)
• Citation: 261 S.W. 762
• Parties: ISBELL et al. v. KENYON-WARNER DREDGING CO.
• Court: Texas Supreme Court

Page 762

261 S.W. 762

ISBELL et al. v. KENYON-WARNER DREDGING CO.

(No. 468-4009.)

Commission of Appeals of Texas, Section B.

April 30, 1924.

Certified Questions from Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by the Kenyon-Warner Dredging Company against R. Isbell and others. Judgment for plaintiff, and defendants appealed to the Court of Civil Appeals, where question was certified. Question answered.

T. T. Thompson, of Clarksville, and King, Mahaffey & Wheeler, of Texarkana, for appellants.

Dood & Chambers, of Clarksville, for appellee.

STAYTON, J.

Certified question from the Court of Civil Appeals for the Sixth Supreme Judicial District, in an appeal from Red River county. The statement and question arising, as certified by the Court of Civil Appeals, are as follows:

"The above-entitled suit by appellee against appellants, commenced in the county court of Red River county December 8, 1921, and now pending on appeal in this court, was to recover the possession of a `dragline bucket' or its value, alleged to be $750, $122 as the rental value of the bucket, at a rate agreed upon, to October 18, 1921, and $125 as the reasonable rental value thereof from said October 18, 1921, to said December 8, 1921. A writ of sequestration issued at appellee's instance was levied on the bucket December 14, 1921, but appellants retained the possession thereof by means of a replevy bond. The case was tried on appellee's first amended original petition, filed February 2, 1922, in which a like recovery as that prayed for in the original petition was sought, and in addition thereto the reasonable rental value of the bucket, alleged to be `$2.50 per day straight time,' from said December 8, 1921, `until the termination of this suit.' The power of the court to hear and determine the case was questioned by an exception in appellants' answer, on the ground that it appeared on the face of the petition `that the matter in controversy was not within the jurisdiction of the court.' The trial resulted in a judgment (rendered October 24, 1922) in appellee's favor against appellants for $750 as the value of the bucket and for $1,049.50 `as the damages or rents' appellee was entitled to recover `for the detention of the bucket.'

"Appellants, having perfected an appeal to this court, insist here, as they did in the trial court, that that court `did not have jurisdiction to try and determine the suit because the value of the property sued for, together with the amount sought to be recovered as rents or damages for the use thereof, far exceeded $1,000.' The amount sued for in the original petition being less than $1,000, this court thinks the county court had jurisdiction of the case, notwithstanding the amount put in controversy by the amended petition exceeded $1,000; but a majority of the members of the court think the county court was without power to render judgment for a sum in excess of $1,000. The conclusion reached by the majority is in conflict with the conclusion reached by the Court of Civil Appeals for the Third District in J. F. Siensheimer & Co. v. Maryland Motor Car Ins. Co., 157 S. W. 228. Because of the conflict (article 1623, Vernon's Statutes), and because it deems it advisable to do so (article 1619, Vernon's Statutes), this court hereby certifies to you for decision a question as follows: Did the county court of Red River county have power to render judgment in appellee's favor against appellants for a sum in excess of $1,000?"

Appellants object that the county court had no power to render a judgment for any sum whatever because its jurisdiction was divested by the amendment. As this question is necessarily within the one certified, it will be investigated first.

The original petition showed the matter in controversy to be of such amount as to lie within the range of the constitutional jurisdiction of the county court. At the time it was filed the total alleged value of the bucket and of the rents was $997. Hence jurisdiction attached originally, because the petition is the test of that question. Hunter et al. v. Oelrich, Dallam, Dig. 358; Dwyer v. Bassett, 63 Tex. 276, and cases cited; Ft. W. & D. C. v. Underwood, 100 Tex. 285, 99 S. W. 92, 123 Am. St. Rep. 806.

In determining whether the amendment served to put an end to the jurisdiction that had already attached, due importance will be given to the evident fact that this second pleading repeated the allegations of the first, but added allegations looking to an additional recovery.

There is a general principle that an amended petition is of the same rank as the petition it amends, and takes its place. It was accordingly held in the last case above cited that the filing of an amended petition in the county court asking for $940.40 with interest as damages from the date of the injury did not deprive the court of jurisdiction, although the interest calculated to the date upon which the amendment was filed and added to the principal increased the total to more than $1,000. The basis of the decision was that for most purposes, including that of determining the jurisdiction of a trial court, an amended petition speaks from the date of the filing of the original petition. An exception to that rule was also indicated. When the amended petition sets up a new cause of action it does not relate back, but speaks from the date upon which the amendment itself is filed. This is because an amended petition which presents a new cause of action, instead of the old one, amounts to the beginning of a new suit. Ayres v. Cayce, 10 Tex. 107. However, where the amended petition retains the old suit, as in the present case, and presents, as well, an additional cause of action, it speaks from the date of the filing of the original petition as to the old suit and from the date of the filing of the amendment as to the additional cause of action. Bigham v. Talbot & Cropper, 63 Tex. 271; Telfener v. Dillard, 70 Tex. 139, 7 S. W. 847.

In view of the possibility that the detention of another's personal property might be viewed as a continuing wrong which inflicts a continuing injury by constantly depriving the owner of its possession and use, thus not only augmenting the damages but augmenting and repeating the injury, the question of whether a new or additional cause of action was set up by the amended petition in this case naturally suggests itself. No solution of this question is thought to be necessary. The principles already noticed, when applied to appellee's case, demonstrate that, whatever was set up in the amended petition, as long as the cause of action stated in the original petition was retained, the court had jurisdiction of that cause of action regardless of whether the new matter was a new cause of action or not. If the new matter was not a new cause of action, the amending allegations related back entirely, and spoke as from the date of December 8, 1921, asserting a matter in controversy of not more than $1,000, in that the alleged damages, as of that date, added to the alleged value of the bucket, only totaled $997. If the new matter, on the other hand, was a new cause of action, it did not interfere in any way with the suit already in progress. The repetition of the old suit related back. The new matter, if it set up a new cause of action, did not; and, though it might not have been sustainable in whole or in part for lack of jurisdiction over it, that situation, if true, did not deprive the court of jurisdiction over the old suit.

The general rule, to which this case appears to be no exception, is that, where jurisdiction is once lawfully and properly acquired, no subsequent fact or event in the particular case serves to defeat the jurisdiction. Ft. W. &. D. C. Ry. Co. v. Underwood, 100 Tex. 285, 99 S. W. 92, 123 Am. St. Rep. 806; Mohrhardt v. S. P. & T. N. Ry Co., 2 Willson, Civ. Cas. Ct. App. § 322; Ross v. Anderson, 1 White & W. Civ. Cas. Ct. App. § 1032; Finch v. Baskerville, 85 N. C. 205; Ablowich v. National Bank, 95 Tex. 433, 67 S. W. 79, 881; Hoffman v. B. & T. Ass'n, 85 Tex. 410, 22 S. W. 154; Braggins v. Holekamp (Tex. Civ. App.) 68 S. W. 57; Shankle v. Ingram, 133 N. C. 259, 45 S. E. 578; Dyett v. Harney, 53 Colo. 381, 127 Pac. 226; Lassiter v. Wilson, 207 Ala. 669, 93 South. 598; Wells on Jurisdiction, 65. This doctrine underlies the Underwood Case, which has already been stated. Several of the other authorities above cited may be also noticed by way of illustration.

In Mohrhardt v. S. P. & T. N. Ry. Co., 2 Willson, Civ. Cas. Ct. App. § 322, which on a related point was approved afterward in Security Co. v. National Bank, 93 Tex. 579, 57 S. W. 22, two suits were consolidated in the county court, bringing the total amount in controversy in the consolidated case to a figure beyond the jurisdictional limit. Later motion to dismiss was granted. The Court of Appeals held this ruling to be error, and the judgment was reversed and remanded instead of being dismissed.

In Finch v. Baskerville, 85 N. C. 205, it appeared that a probate court had jurisdiction of a partition proceeding. An amendment was filed, setting up an additional cause of action over which a court of equity alone would have had jurisdiction. The court said that the legal incapacity of the trial court to take cognizance of the matters embraced in the new cause of action introduced, and for that reason demurrable, did not deprive it of jurisdiction which it already possessed to proceed with the other, and that the amendment could be deemed "an inoperative surplusage, needlessly and uselessly added."

Another case, among those above cited, is Ross v. Anderson, 1 White & W. Civ. Cas. Ct. App. § 1032. It was one where, in an appeal from the justice to the county court, the plaintiff had amended by setting up an additional cause of action which increased his demand to an amount exceeding the jurisdiction of the justice court; and it was held that defendant's motion to the...