McDaniel v. National Steam Laundry Co.

• Decision Date: 18 October 1922
• Docket Number: (No. 356-3132.)
• Citation: McDaniel v. National Steam Laundry Co., 244 S.W. 135 (Tex. 1922)
• Parties: McDANIEL et al. v. NATIONAL STEAM LAUNDRY CO.
• Court: Texas Supreme Court

244 S.W. 135

McDANIEL et al. v. NATIONAL STEAM LAUNDRY CO.

(No. 356-3132.)

Commission of Appeals of Texas, Section B.

October 18, 1922.

Certified Question from Court of Civil Appeals of Seventh Supreme Judicial District.

Action by the National Steam Laundry Company against Worley McDaniel and another. Following trial in justice court, appeal was taken to the county court, where judgment was rendered in favor of plaintiff, which, upon further appeal, was affirmed by the Court of Civil Appeals, where, pending motion for rehearing, the case was certified to the Supreme Court on the question of jurisdiction of the justice court. Judgment that the cause at bar was not within the jurisdiction of the justice court.

O. B. Pirkey, of New Boston, and Cox & Cox, of Sherman, for appellants.

J. P. Leslie, of Sherman, for appellee.

POWELL, J.

This cause is before the Supreme Court upon the following certificate from the honorable Court of Civil Appeals for the Seventh District:

"The National Steam Laundry Company, appellee in the above styled and numbered cause, sued Worley McDaniel and Geo. Burrows, in the justice's court. Following trial and judgment in said court, appeal was taken to the county court, where judgment was rendered in favor of said laundry company for (against) said defendants for the sum of $214. Appeal was duly taken from said judgment to this court. The judgment of said court has been heretofore affirmed, and the case is now pending in this court on motion for rehearing.

"The suit was filed in the justice's court on February 24, 1916. Plaintiff's pleadings were oral, the only statement thereof being the following notation on the docket of the justice's court: `Suit upon guaranty for $199.30, of date ____, due ____, interest ____,' and the statement in the citation issued in said cause, to the effect that the suit was upon `an itemized and verified claim for $199.30, with interest from January 1, 1916, on laundry work done for said Worley McDaniel and guaranteed in writing by the said G. W. Burrows.' The `account' which was verified appears to have been a statement of various charges for laundry work done by the laundry company for Worley McDaniel. This `account' was offered in evidence, and in addition testimony by the laundry company, to the effect that it was correct, and that, after it had been rendered, the defendant agreed to pay it. There was also introduced in evidence a letter written by Burrows preceding the date of the charges guaranteeing the payment of charges for laundry work done for the said Worley McDaniel.

"On this appeal the appellants suggest that the justice's court was without jurisdiction, because any interest that might be recovered as prayed for would be recoverable only as damages, and not as interest eo nomine, and the amount in controversy thus exceeded $200, and prayed that the judgment of the county court be reversed and the case dismissed. This court overruled this contention, and affirmed the case, one of the members of the court dissenting from this conclusion, and, as stated, the case is now pending in this court on motion for rehearing.

"In view of the dissenting opinion and the apparent confusion in the law which should control the disposition of the question thus presented, we deem it proper to certify to your honorable court for decision the following question: `Under the facts stated, was the amount in controversy in this suit within the jurisdiction of the justice's court?'"

Section 19 of article 5 of our state Constitution confers upon justices of the peace jurisdiction "in civil matters of all cases where the amount in controversy is $200 or less, exclusive of interest, of which exclusive original jurisdiction is not given to the district or county courts."

As shown by the certificate, the laundry company, in the lower courts, sued for $199.30 with interest from January 1, 1916. The suit itself was instituted February 24,. 1916, and this interest in controversy, covering a period of almost two months at the time the suit was filed, would, if added to the principal amount sued for, result in a sum exceeding $200. Therefore, if this item of interest is of the kind which becomes a part of the "amount in controversy," the justice's court did not have jurisdiction of the cause. Hence the query is whether or not said interest was of that kind.

It is the well-settled law of this state that interest recoverable eo nomine is not taken into consideration in determining whether the entire amount sued for is within the jurisdiction of the court. But interest recoverable as damages does become a part of the amount in controversy, and therefore determines the jurisdiction of the courts. Railway Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103; Railway Co. v. Matthews, 108 Tex. 228, 191 S. W. 559.

In the case of Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666, Judge Gaines says:

"Interest cannot be allowed eo nomine unless especially provided for by statute, but in many instances it may be assessed as damages when necessary to indemnify a party for an injury inflicted by his adversary, though the statute be silent upon the subject."

This test laid down by Judge Gaines has never been questioned by our courts. Our statutes, in the title on interest, first define interest in general, then legal interest and conventional interest in turn. Articles 4973, 4974, and 4975 of Vernon's Sayles' Revised Civil Statutes of Texas of 1914. After that the statutes proceed to "especially provide" for interest in three different articles, as follows:

Article 4977 reads:

"On all written contracts ascertaining the sum payable, when no specified rate of interest is agreed upon by the parties to the contract, interest shall be allowed at the rate of six per cent. per annum from and after the time when the sum is due and payable."

Article 4978 reads:

"On all open accounts, when no specified rate of interest is agreed upon by the parties, interest shall be allowed at the rate of six per cent. per annum from the first day of January, after the same are made."

Article 4981 reads:

"All judgments of the several courts of this state shall bear interest at the rate of six per cent. per annum from and after the date of the judgment, except where the contract upon which the judgment is founded bears a specified interest greater than six per cent. per annum and not exceeding ten per cent. per annum, in which case the judgment shall bear the same rate of interest specified in such contract and after the date of such judgment."

Interest provided for in the three articles above quoted is interest eo nomine and is not taken into consideration in determining jurisdiction of courts. Under the facts of the case at bar, only one of these articles could possibly be applicable, and that is the one allowing interest, as a matter of law, on "open accounts" from and after the 1st day of January after they are made. Is this suit within this statute?

The pleadings show that there was an attempt to bring this action as a so-called "open account." The account was verified in the manner provided by the statute in such cases. Article 3712 of Vernon's Sayles' Statutes, aforesaid. There was a prayer for interest from January 1st, after the laundry work had been done. But we do not think this account was an open account within the meaning of our statutes. The leading case in Texas defining an "open account" as used in our statutes is that of McCamant v. Batsell, 59 Tex. 363. In that case we are favored with a very able opinion by Justice Stayton. He discusses "accounts" and "open accounts" in various ways, and says:

"As used in the statutes of this state, in act referred to, we believe that the word `account' is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon the one side and purchase upon the other, the title to personal property passes from the one to the other, and the relation of debtor and creditor is thereby created by general course of dealing; and that it does not mean one or more isolated transactions resting upon special contract."

This opinion by Judge Stayton has...