Olloqui v. Duran

60 S.W.2d 808, 1933 Tex. App. LEXIS 739

• Court: Court of Appeals of Texas
• Decided: April 15, 1933
• Docket: No. 11213
• Status: Published

Opinions

BOND, Justice.

Defendant in error brought this suit against plaintiff in error in the county court of Dallas county at law No. 2, for the sum of $266.31, with interest and attorney’s fee, balance due on a note executed by plaintiff in error, and to foreclose a mortgage lien on personal property.

The only allegation touching the value of the property covered by the lien is as to the purchase price of the articles, viz., $516.31. Plaintiff in error did not except to defendant in error’s petition, as failing to show jurisdiction, nor did she allege that the property upon which the mortgage was sought to be foreclosed exceeded $1,000 in value; neither did she suggest the want of jurisdiction in her motion for a new trial. The record comes to this court without a statement of facts, and, for the first time, it is here insisted that fundamental error was committed in the trial below, because of the failure of defendant in error’s petition to allege the value of the mortgaged property.

The contention of plaintiff in error that this case should be dismissed for want of jurisdiction must be overruled. The petition alleges an amount of $266.31, which was within the jurisdiction of the trial court, and the mere failure to allege the value of the property mortgaged would not deprive the court of its jurisdiction. The value of the property involved is not the only ground to confer jurisdiction upon trial courts. If the allegations of the petition or the proof in evidence should show the value of the property exceeded in amount the jurisdiction of the court, then, in such event, the trial court would have been without jurisdiction to entertain the suit; on the.other hand, if the allegations of the petition showed the amount in suit to be within the jurisdiction of the court, but fails to show the value of %he-property, and no proof is tendered showing such value, the mere failure to allege the value does not oust the court of its jurisdiction. The petition, in this instance, being sufficient to show jurisdiction, it would have been incumbent upon plaintiff in error to show the lack of jurisdiction. This position has support in the case of Co tulla v. Goggan, 77 Tex. 32, 13 S. W. 742, 743. In passing upon this point, the Supreme Court said: « ⅜ * * was ^ right of the defendant to insist upon their dilatory plea, and prove that the value of the piano exceeded $200, and; thereby to defeat the jurisdiction and secure a dismissal of the suit.”

Thus, it was the privilege of plaintiff in error to raise the question of the insufficiency of the petition, and then defendant in. error could have amended, and if the amendment had shown the value of the property to be beyond the jurisdiction of the court, the case necessarily would have been dismissed under the uniform holding of the courts of this state, or, if the record on appeal showed the value of the mortgaged property in excess of the jurisdictional amount of the court, a fundamental error could be raised at any time and the case would have to be-abated.

We conclude that the pleadings were sufficient to show jurisdiction, and nothing-in the record to show otherwise, no statement of facts accompanying this appeal, and every-presumption must be indulged in favor of' the jurisdiction of the court; therefore, this-case is affirmed.

Affirmed.