J. F. Siensheimer & Co. v. Maryland Motor Car Ins. Co.

• Decision Date: 16 April 1913
• Court: Texas Court of Appeals
• Parties: J. F. SIENSHEIMER & CO. v. MARYLAND MOTOR CAR INS. CO. et al.

157 S.W. 228

J. F. SIENSHEIMER & CO. v. MARYLAND MOTOR CAR INS. CO. et al.

Court of Civil Appeals of Texas. Austin.

April 16, 1913.

Rehearing Denied May 21, 1913.

Appeal from Hays County Court; J. B. Wilson, Judge.

Action by the Maryland Motor Car Insurance Company and others against J. F. Siensheimer & Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

O. T. Brown, of San Marcos, and Kleberg & Neethe, of Galveston, for appellant. Barber & McKie, T. C. Johnson, Jr., and T. J. Saunders, all of San Marcos, for appellees.

JENKINS, J.

1. Appellees object to the consideration of appellants' assignments of error for the reason that they do not comply with rule 25 (142 S. W. xii), in that they do not refer to that portion of appellants' motion for a new trial wherein the error assigned is complained of. This objection must be sustained. Said assignments do not refer to the motion for a new trial.

2. Appellants insist that fundamental error was committed against them for the reason that the court was without jurisdiction to try this case, or to render the judgment herein rendered. The facts upon which this contention is based are these: On July 10, 1911, appellee the Maryland Motor Car Insurance Company brought suit against appellants for $950 damages for failure to cancel a certain policy as agents of said company, and for 6 per cent. interest from June 11, 1911, the date when the cause of action is alleged to have accrued. On August 6, 1912, plaintiffs filed an amended petition, pleading the same cause of action, and alleging, as in original petition, that it had been damaged by reason of the acts of appellants in the sum of $950, and praying for judgment for that amount, together with 6 per cent. interest from said 11th day of June, 1911. The case was tried on said 6th day of August, 1912, and judgment was rendered for plaintiff for $950, with interest from June 6, 1911. It will thus be seen that at the time this suit was filed the principal and interest claimed was less than $1,000, and that at the time such suit was tried the accrued interest on said $950 had increased the amount then due to more than $1,000. Was the county court, by reason of this fact, deprived of jurisdiction to try this case, and, if not, could it render judgment for an amount in excess of $1,000?

3. Article 5, § 16, of the Constitution of this state, fixes the maximum amount for which suit may be brought in the county court at $1,000, exclusive of interest. It is well settled in this state that "interest," as used in this article of the Constitution, means interest eo nomine, and not interest allowed as damages in actions of tort. Railway Co. v. Faulkner, 118 S. W. 748; Baker v. Smelser, 88 Tex. 26, 29 S. W. 378, 33 L. R. A. 163; Railway Co. v. Fromme, 98 Tex. 459, 84 S. W. 1055; Railway Co. v. Hunt, 38 Tex. Civ. App. 460, 85 S. W. 1168; Railway Co. v. Everett, 95 S. W. 1085; Railway Co. v. Addison, 96 Tex. 61, 70 S. W. 200; Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1032; Grocer Co. v. Railway Co., 142 S. W. 624; Railway Co. v. Rayzor, 125 S. W. 619.

4. But while it is true that if the amount claimed as damages for a tort, together with the interest thereon, exceeds $1,000 at the time the suit is filed, the county court would be without jurisdiction to try the case (Railway Co. v. Rayzor, supra), it is equally true that, if such amount did not exceed $1,000 when the suit was filed, the county court at that time would have jurisdiction. Would it lose jurisdiction by reason of the fact that the interest accumulating subsequent to the filing the suit caused the aggregate amount recoverable to exceed $1,000?

This question must be answered in the negative. Railway Co. v. Underwood, 100 Tex. 284, 99 S. W. 92, 123 Am. St. Rep. 806; Railway Co. v. Barnett, 27 Tex. Civ. App. 498, 66 S. W. 475; Railway Co. v. Dolan, 84 S. W. 393. In so far as it affects the jurisdiction of the court to render judgment in the case, it is immaterial that the principal and accumulated interest recoverable as damages exceeded the jurisdiction of the court at the time of filing the amended petition upon which the case was tried. "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. * * * 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 had jurisdiction to adjudge." Railway Co. v. Underwood, supra.

5. In the cases last above cited, it is intimated that, while the court would retain jurisdiction, notwithstanding the fact that by lapse of time since the filing of the suit the accumulated interest may have increased the amount in controversy beyond the jurisdiction of the court, as to the amount for which suit may be brought in such court, still the judgment which the court could render in such case could not exceed the amount fixed by law for which suit could be brought in such court. We say "intimated" and not decided, because the expressions on this subject to be found in said opinions are dicta. Mr. Chief Justice Brown, in an able and well-considered opinion in the recent case of Grigsby v. Reib, 153 S. W. 1126, says: "`Dictum' is defined to be `an opinion expressed by a court, but which, not being necessarily involved in the case, lacks the force of an adjudication.'"

In Railway Co. v. Barnett, supra, the assignment of error was not that the county court erred in rendering judgment for an amount in excess of $1,000, but that "the trial court erred in rendering any judgment whatever (italics ours) in this case, for the reason that said court had no jurisdiction over the subject-matter in this: The plaintiff in his petition seeks to and did in fact recover in this suit the sum of $960, with legal interest thereon from August 28, 1898," which amount at the time of the rendition of the judgment exceeded $1,000. This assignment was overruled in the following...