Litterst v. Edmonds, 11581.
| Decision Date | 23 November 1943 |
| Docket Number | No. 11581.,11581. |
| Citation | 176 S.W.2d 342 |
| Parties | LITTERST v. EDMONDS. |
| Court | Texas Court of Appeals |
Appeal from Harris County Court; Allie L. Peyton, Judge.
Action by James H. Edmonds against F. C. Litterst for recovery of money due on a promissory note and for foreclosure of a chattel mortgage lien, wherein defendant filed a cross-action. From a judgment for plaintiff for amount due on note, less sum claimed by defendant and for foreclosure, defendant appeals.
Affirmed.
Sam G. Croom, of Houston, for appellant.
J. S. Bracewell, of Houston, for appellee.
This action was brought in County Court at Law No. 2 of Harris County by appellee, J. H. Edmonds, for the recovery from appellant, F. C. Litterst, of $400, the amount alleged to be due on a promissory note, and for a foreclosure of a chattel mortgage lien on a Hudson automobile. Plaintiff's petition contained no allegation of the value of the automobile. However, plaintiff filed an affidavit to procure a writ of sequestration in which the value of said automobile was placed at $400.
Appellant answered by general denial and by cross-action in which he sought recovery of salary alleged to be due him by appellee. No exception was taken by appellant in the trial court to appellee's failure to allege the value of the automobile on which foreclosure was sought.
In a trial before the court without a jury judgment was rendered in favor of appellee for the amount due on the note, less the sum claimed by appellant to be due him as salary, and for foreclosure of the chattel mortgage lien on said automobile.
Appellant complains for the first time on this appeal of the failure of appellee to allege in his petition the value of the automobile upon which foreclosure was sought. He contends that the failure of appellee to allege this fact in his petition is fundamental error, in that it goes to the jurisdiction of the court in which the suit was brought, and that it requires a reversal and remanding of the case.
It is the settled law of this State that "jurisdiction", in so far as the amount in value in controversy is concerned, is determined by the averments in the petition itself and that a statement of the value of the property in an affidavit for sequestration is neither in fact nor affect a part of the plaintiff's petition, and that this statement of value can not be considered as equivalent to an allegation in the petition. Brown et al. v. Peters, 127 Tex. 300, 94 S.W.2d 129.
Appellee contends, however, that, under Rule 90, Texas Rules of Civil Procedure, appellant has waived his right to now seek a reversal of this case on the ground that appellee failed to allege the value of the...
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