CONNER, C. J.
This is an appeal from a judgment of the county court in appellee’s favor for $145, besides costs of suit. The judgment is based upon a verified account by appellee for $130, which bears the file mark of a justice of the peace, but the record fails to contain a transcript made out by the justice showing that there was a trial or judgment of any kind in the justice court. It is from final judgments only that an appeal will lie from a justice’s court, and it is certain that the amount in controversy is not within the original jurisdiction of the county court. It is therefore apparent that the record herein fails to affirmatively show, as must be done, jurisdiction in the county court, either original or appellate, to render the judgment appealed from. What then shall be done with the appeal?
It was suggested in the "case of Wells v. Driskell, 105 Tex. 77, 145 S. W. 333, by our Supreme Court that the proper practice under such circumstances is to' notify the parties and afford an opportunity to supply the missing record, or otherwise establish the jurisdictional fact if • it can be done, and that, in event of a failure to so do, to dismiss the appeal.-
In view of amended rule 22 (142 S. W. xii) and of the decision of our Supreme Court in
H. & T. C. R. Co. v. Parker, 104 Tex. 162, 135 S. W. 369, we have adhered to the practice of this court to refuse, after the submission of a cause, to grant litigants the privilege of delaying a case in order to supply a necessary part of the record, the reasons for our practice in this respect being stated in an opinion on motion for certiorari in Trammell v. Rosen, 153 S. W. 165, and in the' case of Bank v. Watson, 178 S. W. 658. We need not, however, at this time express any opinion on the question of whether we should abandon our established practice and give notice of the defect pointed out, for the reason that upon the submission of this cause it was suggested that there was no transcript from the justice court, and neither then nor since has either party sought in any way to correct the record, though there has been ample time to do so. We think, therefore, that we are authorized to assume that the parties either cannot, or care not to, have the record corrected, and that we should proceed to a determination of the appeal.
At this point, however, there is a pronounced divergence of opinion among us. Associate Justice BUCK is of opinion that we should follow the further suggestion in the Driskell Case and dismiss the appeal, while the majority think that the judgment should be reversed v^ith direction to the county court to dismiss the case from its docket unless its jurisdictional facts be shown. The difference in view on the point of practice may, at first thought, be deemed of no importance, but if it be true, as our present record indicates as possible, that the county court was without either original or appellate jurisdiction, it is readily seen that a dismissal of the appeal leaves in apparent force a judgment of the county court, not void on its face, but rendered without authority, thus subjecting the judgment defendant to the. necessity of further litigation by an appeal to a court of equity in order to relieve himself from a judgment in fact void. In order to avoid complications of this character, as we infer, our Supreme Court, in the case of Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, expressly stated that, in cases of the character now before us, “the better plan would be to reverse the judgment rendered by the county court and dismiss the case, rather than to dismiss the appeal from the Court of Civil Appeals.” In view of the suggestion thus made, and of the distinct holding in that case, as also in Williams v. Steele, 101 Tex. 387, 108 S. W. 155, that this court had jurisdiction to decide upon the validity of the judgment rendered and to dispose of it notwithstanding a want of jurisdiction, in the county court to render it, we later took up the question of practice in question, and, after full consideration, reversed our former practice, and determined that the rule-should be as indicated by the Supreme Court in Railway v. Coal Co., supra. See Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618. Since then this court has uniformly, and in numerous cases, enforced the rule announced in Ware v. Clark, and reversed the judgment, instead of dismissing the appeal, the latest one on the subject that we recall being the above-cited case of City National Bank v. O. P. Watson, 178 S. W. 657, decided by us, all agreeing, shortly before the adjournment of our last term of court. Notwithstanding the eases mentioned, however, the majority might feel constrained to follow the later suggestion in the Driskell Case and dismiss this appeal, if we regarded it as the result of the deliberate conclusion of the Supreme Court on the point of practice here involved after its attention had been called thereto. But an examination of the Driskell Case will show, as the majority think, that the question really intended to be certified for determination was not whether-it was proper to dismiss the appeal rather than to reverse the judgment, but whether it was essential for the record in the Court of Appeals to contain a transcript from the justice court, exhibiting the proceedings of that court. To this question the entire argument of the Supreme Court seems directed, and the pajority regard the suggestions, indicating that, in the absence of a transcript of the justice, it is proper to dismiss the appeal, as mere passing expressions of the able judge who wrote the opinion without his attention having in any way been called to the particular point. Had it been the purpose to fix a practice different from that suggested in Railway v. Canyon Coal Co., and to overrule our decision following it (Ware v. Clark), we think the purpose would have been so expressed in plain terms. As it is, however, the majority feel unwilling to depart from • the established practice of this court until a more specific.and authoritative determination of the Supreme Court to the contrary.
We should, perhaps, before closing the subject call brief attention to a distinction in the cases that has been given weight by the majority. There is a marked distinction, as we think, between cases where the law has given no jurisdiction whatever over the subject-matter in controversy and cases within the scope of the general powers conferred by law, but in which it appears that the court’s jurisdiction has been irregularly set in motion, or where, as in the case before us, the record merely fails to affirmatively show that the proper steps have been taken to bring the court’s power into active operation. In one class of cases there is an entire want of power, while in the other power or jurisdiction exists in a very important sense. Many cases and numerous - text-
writers, which we will not take the time to cite and analyze, announce in general terms, without reference to any distinction, that the appellate ■ court is without jurisdiction in cases where the trial court is without jurisdiction, and hence that the appellate court has no power to revise or alter the judgment below in any form, but can only dismiss the appeal. Yet, as we have seen, in the cases of Railway v. Canyon Coal Co. and Williams v. Steele, it was distinctly held by our Supreme Court that the Courts of Civil Appeals did have the power to set aside the judgment of the court below, notwithstanding the ruling that the court below was without jurisdiction, thus constituting an apparent conflict in the authorities.
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CONNER, C. J.
This is an appeal from a judgment of the county court in appellee’s favor for $145, besides costs of suit. The judgment is based upon a verified account by appellee for $130, which bears the file mark of a justice of the peace, but the record fails to contain a transcript made out by the justice showing that there was a trial or judgment of any kind in the justice court. It is from final judgments only that an appeal will lie from a justice’s court, and it is certain that the amount in controversy is not within the original jurisdiction of the county court. It is therefore apparent that the record herein fails to affirmatively show, as must be done, jurisdiction in the county court, either original or appellate, to render the judgment appealed from. What then shall be done with the appeal?
It was suggested in the "case of Wells v. Driskell, 105 Tex. 77, 145 S. W. 333, by our Supreme Court that the proper practice under such circumstances is to' notify the parties and afford an opportunity to supply the missing record, or otherwise establish the jurisdictional fact if • it can be done, and that, in event of a failure to so do, to dismiss the appeal.-
In view of amended rule 22 (142 S. W. xii) and of the decision of our Supreme Court in
H. & T. C. R. Co. v. Parker, 104 Tex. 162, 135 S. W. 369, we have adhered to the practice of this court to refuse, after the submission of a cause, to grant litigants the privilege of delaying a case in order to supply a necessary part of the record, the reasons for our practice in this respect being stated in an opinion on motion for certiorari in Trammell v. Rosen, 153 S. W. 165, and in the' case of Bank v. Watson, 178 S. W. 658. We need not, however, at this time express any opinion on the question of whether we should abandon our established practice and give notice of the defect pointed out, for the reason that upon the submission of this cause it was suggested that there was no transcript from the justice court, and neither then nor since has either party sought in any way to correct the record, though there has been ample time to do so. We think, therefore, that we are authorized to assume that the parties either cannot, or care not to, have the record corrected, and that we should proceed to a determination of the appeal.
At this point, however, there is a pronounced divergence of opinion among us. Associate Justice BUCK is of opinion that we should follow the further suggestion in the Driskell Case and dismiss the appeal, while the majority think that the judgment should be reversed v^ith direction to the county court to dismiss the case from its docket unless its jurisdictional facts be shown. The difference in view on the point of practice may, at first thought, be deemed of no importance, but if it be true, as our present record indicates as possible, that the county court was without either original or appellate jurisdiction, it is readily seen that a dismissal of the appeal leaves in apparent force a judgment of the county court, not void on its face, but rendered without authority, thus subjecting the judgment defendant to the. necessity of further litigation by an appeal to a court of equity in order to relieve himself from a judgment in fact void. In order to avoid complications of this character, as we infer, our Supreme Court, in the case of Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, expressly stated that, in cases of the character now before us, “the better plan would be to reverse the judgment rendered by the county court and dismiss the case, rather than to dismiss the appeal from the Court of Civil Appeals.” In view of the suggestion thus made, and of the distinct holding in that case, as also in Williams v. Steele, 101 Tex. 387, 108 S. W. 155, that this court had jurisdiction to decide upon the validity of the judgment rendered and to dispose of it notwithstanding a want of jurisdiction, in the county court to render it, we later took up the question of practice in question, and, after full consideration, reversed our former practice, and determined that the rule-should be as indicated by the Supreme Court in Railway v. Coal Co., supra. See Ware v. Clark, 58 Tex. Civ. App. 356, 125 S. W. 618. Since then this court has uniformly, and in numerous cases, enforced the rule announced in Ware v. Clark, and reversed the judgment, instead of dismissing the appeal, the latest one on the subject that we recall being the above-cited case of City National Bank v. O. P. Watson, 178 S. W. 657, decided by us, all agreeing, shortly before the adjournment of our last term of court. Notwithstanding the eases mentioned, however, the majority might feel constrained to follow the later suggestion in the Driskell Case and dismiss this appeal, if we regarded it as the result of the deliberate conclusion of the Supreme Court on the point of practice here involved after its attention had been called thereto. But an examination of the Driskell Case will show, as the majority think, that the question really intended to be certified for determination was not whether-it was proper to dismiss the appeal rather than to reverse the judgment, but whether it was essential for the record in the Court of Appeals to contain a transcript from the justice court, exhibiting the proceedings of that court. To this question the entire argument of the Supreme Court seems directed, and the pajority regard the suggestions, indicating that, in the absence of a transcript of the justice, it is proper to dismiss the appeal, as mere passing expressions of the able judge who wrote the opinion without his attention having in any way been called to the particular point. Had it been the purpose to fix a practice different from that suggested in Railway v. Canyon Coal Co., and to overrule our decision following it (Ware v. Clark), we think the purpose would have been so expressed in plain terms. As it is, however, the majority feel unwilling to depart from • the established practice of this court until a more specific.and authoritative determination of the Supreme Court to the contrary.
We should, perhaps, before closing the subject call brief attention to a distinction in the cases that has been given weight by the majority. There is a marked distinction, as we think, between cases where the law has given no jurisdiction whatever over the subject-matter in controversy and cases within the scope of the general powers conferred by law, but in which it appears that the court’s jurisdiction has been irregularly set in motion, or where, as in the case before us, the record merely fails to affirmatively show that the proper steps have been taken to bring the court’s power into active operation. In one class of cases there is an entire want of power, while in the other power or jurisdiction exists in a very important sense. Many cases and numerous - text-
writers, which we will not take the time to cite and analyze, announce in general terms, without reference to any distinction, that the appellate ■ court is without jurisdiction in cases where the trial court is without jurisdiction, and hence that the appellate court has no power to revise or alter the judgment below in any form, but can only dismiss the appeal. Yet, as we have seen, in the cases of Railway v. Canyon Coal Co. and Williams v. Steele, it was distinctly held by our Supreme Court that the Courts of Civil Appeals did have the power to set aside the judgment of the court below, notwithstanding the ruling that the court below was without jurisdiction, thus constituting an apparent conflict in the authorities. There should be, as it seems to the majority, no real conflict between the classes of cases. The first class, as it -seems to us, is properly to be applied where the trial court under no circumstances could enter ■ a lawful decree, while the latter cases are to be followed where the trial court in general terms has been given power over the subject-matter and persons, but in which it does not appear that such .general power has been properly invoked. To- illustrate, under our judicial acts the county court under no conceivable circumstances can be said to have jurisdiction to try a suit in trespass to try title to land, or a suit for divorce, as all power over these subjects has been given to a different trial court. Should a county court, therefore, enter a decree of divorce, or enter a judgment establishing title to land, the decree would be void on its face, for the reason that, in the light of the law that all men are presumed to know, it is apparent that the county court had no power or jurisdiction over the subject-matter. In such case the judgment is void upon" its face, and can constitute no obstacle to the assertion .of a right, or operate as an aid to any one claiming under it. In all such cases there is a want of jurisdiction in the strict sense of the term, and, as we think, it would be entirely proper for the appellate court to dismiss the appeal rather than to exercise appellate jurisdiction by reversing the judgment. But take the ease we now have before us as illustrating the opposing class of cases, and which we think is within the principle followed in Railway v. Canyon Coal Co. and Williams v. Steele. The justice court undoubtedly had original jurisdiction to try the cause and enter a decree, and it is just as clear that our county courts in general terms have been given appellate jurisdiction over this class of cases. See Vernon’s Sayles’ Texas Civil Statutes, art. 1767. So that the decree of the county court now before us does not appear to be void on its face. The decree has been rendered on a subject-matter apparently within the general scope of the powers given to the county court, and its judgment would not be subject to a collateral attack. See Roy v. Whitaker, 50 S. W. 491. In fact the appellate jurisdiction of the county court may have been properly invoked. The only difficulty in the proceedings as presented to us is that our records fail to affirmatively so show, and the parties, as we have seen, having failed to supply this necessary evidence after due opportunity to do so, we think the judgment should be reversed in accordance with the practice announced by us in Ware v. Clark, and followed in the kindred cases of judgments by default, where the record fails to show that the trial court acquired jurisdiction over the person of the defendant by due service of citation.
It is ordered that the judgment herein be reversed, and the cause remanded, with direction to the county court to dismiss the case from the docket unless the jurisdictional facts be legally shown.