Smelser v. Baker

• Court: Texas Supreme Court
• Writing for the Court: Gaines
• Citation: Smelser v. Baker, 29 S.W. 377 (Tex. 1895)
• Decision Date: 28 January 1895
• Parties: SMELSER v. BAKER.

29 S.W. 377

SMELSER v. BAKER.

Supreme Court of Texas.

January 28, 1895.

Error to court of civil appeals of Fifth supreme judicial district.

Action by George C. Baker against J. H. Smelser. From a reversal by the court of civil appeals (26 S. W. 905) of a judgment of the district court for plaintiff, plaintiff brings error. Reversed.

P. A. Turner and J. M. Talbot, for plaintiff in error. McLean & Hynson, for defendant in error.

GAINES, C. J.

The plaintiff in error brought this suit to recover of defendant in error the value of a stock of merchandise which had been levied upon by virtue of a writ of attachment sued out by the latter against the property of one Watlington. After the levy the goods were sold by virtue of an order of the district judge, and were purchased and taken possession of by the defendant in error. The plaintiff in error recovered a judgment in the court below, but upon appeal the judgment was reversed, and rendered for the defendant by the court of civil appeals. The case was carried to the latter court upon an agreed statement, signed by the attorneys, and approved by the judge. The pleadings do not appear in the transcript. It is, however, shown by the agreed statement that the "suit was instituted on September 16, 1889, by the plaintiff, Baker, for the use and benefit of the Gilkerson & Sloss Commission Company against the defendant, Smelser, for the conversion and for the value of the goods," etc. The court, before whom the case was tried without a jury, found the value of the goods to be $1,000, and gave judgment for the plaintiff for $1,166.07. This evidently was the value of the goods and interest thereon from the conversion, which occurred on the 4th day of June, 1889. The record contains no direct statement as to the amount which was sued for in the petition. This state of the record has suggested to us a question as to the jurisdiction of this court which we have found necessary and difficult to determine. Although the question has not been raised by counsel for the defendant in error, we think it best to give our conclusions upon it, together with the reasons upon which those conclusions are based.

With some exceptions (of which this case is not one), the decisions of the courts of civil appeals are final in all cases over which the county court may have had jurisdiction under the constitution. Laws 1892, p. 26, § 5. Section 16 of article 5 of the constitution provides, among other things, that the county courts shall have "concurrent jurisdiction with the district courts when the matter in controversy shall exceed $500 and not exceed $1,000 exclusive of interest, but shall not have jurisdiction of suits for the recovery of land." It is apparent from the record before us that the plaintiff must have claimed in his petition $1,000, the value of the goods converted, and additional damages for the conversion, measurable by the interest on that value from the date of the conversion to the time of the trial. If these damages are to be treated as "interest," within the meaning of that term as used in the section of the constitution from which we have quoted, then the record fails to show that we have jurisdiction. If they are not to be so treated, then the sum sued for exceeded $1,000, exclusive of interest; and it is a case in which a writ of error lies to the judgment of the court of civil appeals. Our statutes make no provision for allowing interest in actions of this character, but it belongs to a class of cases in which interest upon the amount of the pecuniary loss inflicted by the injury is allowed as a part of the damages. It is clear that, in a suit for the conversion of a specific sum of money, a recovery of that sum, without an allowance for the use of the money, would not adequately compensate the loss. The rate of interest established by law, being a fixed standard of the value of the use of money, is adopted by the court as the measure of that damage in such a case. Where the statute does not expressly provide for the recovery of interest, it is allowed, not eo nomine, — that is, not as interest, — but merely as damages. It would probably be more correct to say that that rate of interest is resorted to in order to measure the damages accruing from the loss of the use of the money. As in case of the conversion of money, so in the case of the conversion of goods, and in many others in which the statute does not expressly create a legal liability for interest. Heidenheimer v. Ellis, 67 Tex. 426, 3 S. W. 666. Recurring, then, to the provision in the constitution now under consideration, we are of opinion that it was intended to apply to cases in which interest is expressly given by statute, and not those in which the rate of interest is merely taken as a standard by which to measure in part the damages to be recovered. This case comes under the latter class; and, since we infer from the agreed statement and the judgment of the trial court that more than $1,000 must have been claimed in the petition, we conclude that jurisdiction over it has been given by the statute. Laws 1892, p. 26, § 5.

The case turns upon the construction of section 1 of the act of April 22, 1879, in reference to chattel mortgages (2 Sayles' Ann. St. art. 3190b). The plaintiff claimed the goods under a deed of trust executed and delivered to him as trustee in the night, at 11 o'clock, on the 3d day of June, 1889, and filed with the county clerk immediately upon the opening of his office, at 7 o'clock, on the next morning. The defendant claimed under an attachment in his favor against the mortgagor, which was levied upon the goods in question at 6 o'clock on the same morning. If the mortgage takes effect from its execution, the judgment of the trial court is correct; but, if it did not take effect as against the attaching creditor until it was filed, it is erroneous. The section of the statute which we are called upon to construe reads as follows: "Every chattel mortgage, deed of trust or other instrument of writing intended to...