Sikes v. Keller

• Decision Date: 12 May 1917
• Docket Number: (No. 8641.)
• Citation: 197 S.W. 311
• Parties: SIKES v. KELLER.
• Court: Texas Court of Appeals

197 S.W. 311

SIKES v. KELLER.

(No. 8641.)

Court of Civil Appeals of Texas. Ft. Worth.

May 12, 1917.

On Motion for Rehearing June 23, 1917.

Appeal from Wise County Court; J. W. Walker, Judge.

Action by G. M. Keller against Olga Sikes and another. From a judgment in favor of plaintiff, the defendant named appeals. Reversed and remanded.

R. E. Carswell, of Decatur, for appellant. McMurray & Gettys, of Decatur, for appellee.

CONNER, C. J.

The appellee, Keller, instituted this suit on the 22d day of September, 1915, in a justice court against C. O. Sikes and Olga Sikes, a feme sole, to recover the sum of $199.75, as damages for the conversion of certain personal property alleged to be of that value. It was alleged that the conversion occurred at a point named in New Mexico "on or about September 22, 1915." The plaintiff in the suit at the same time caused the issuance of an attachment, which upon the same day was levied upon certain goods described in the sheriff's return; it being recited in the return that the property was "owned by C. O. and Olga Sikes." While the defendants, C. O. and Olga Sikes, were duly cited, it appears that they suffered a judgment by default in the justice court, but thereafter duly prosecuted an appeal to the county court, wherein the plaintiff filed what was styled his "original petition," and wherein the defendant Olga Sikes appeared and by an answer in writing denied the conversion alleged by the plaintiff, and further specially alleged that she was the owner of the attached property. In answer to special issues upon which the case was submitted, the jury answered to the effect that C. O. Sikes converted the property described in the plaintiff's petition, and that the defendant Olga Sikes acted with him in such conversion. The jury further found that the property converted was of value $199.75 less 90 cents that had been paid by C. O. Sikes in behalf of the plaintiff, and that the property upon which the writ of attachment had been levied and described in the officer's return belonged to C. O. Sikes. Judgment in accordance with the verdict was rendered in favor of the plaintiff, and the defendant Olga Sikes has appealed.

As alleged, the value of the property charged to have been converted and the damage claimed was within the jurisdiction of the justice court, and the allegation is controlling in the absence of a special plea specifically charging that it was so alleged for the fraudulent purpose of wrongfully conferring jurisdiction upon the justice court. Dwyer v. Bassett, 63 Tex. 274; Roper Bros. v. Brady, 80 Tex. 588, 16 S. W. 434; Baker v. Guinn, 4 Tex. Civ. App. 539, 23 S. W. 604.

There is no merit, therefore, in appellant's contention that the justice court was without jurisdiction, for neither in that court nor in the county court was it sought to defeat the jurisdiction by plea that the plaintiff had fraudulently stated the value of the converted property, nor was the jurisdiction of the justice court defeated, as is insisted, on the ground that to the alleged value of the converted property must be added interest, which, if done, would extend the plaintiff's claim beyond $200. It is true that interest in such cases is recoverable, as an element of damage from the date of the conversion; but there was no prayer for the recovery of such interest, and interest as an element of damages was not adjudged. Moreover, as alleged, the conversion occurred upon the day of the institution of the suit, and hence in no event did interest so accrue as to extend the amount of the plaintiff's claim beyond the jurisdiction of the justice court; the rule being that, if the plaintiff's allegations are susceptible of a construction which will support the jurisdiction of the court rendering the judgment, that construction will be adopted. See P. & N. T. Ry. Co. v. Rayzor, 106 Tex. 544, 172 S. W. 1103. Appellant's first assignment will, accordingly, be overruled.

We think the evidence authorized the submission of the issues, and that there was no error of the court either in giving or in refusing charges.

But we think the court committed reversible error as urged under the ninth assignment in admitting, over appellant's objection, the testimony of Guinn Williams, E. P. Gibson, T. C. Bridges, and J. H. Lynch, to the effect that the general reputation of C. O. Sikes in the neighborhood in which he lived in Texas prior to his removal to New Mexico for honesty and fair dealing was bad. While C. O. Sikes did not prosecute...