Western Union Telegraph Co. v. Arnold

77 S.W. 249, 33 Tex. Civ. App. 306, 1903 Tex. App. LEXIS 494

• Court: Court of Appeals of Texas
• Decided: October 21, 1903
• Status: Published

Opinions

FISHER, Chief Justice.

During its last term this court certified to the Supreme Court the question whether the plaintiff’s petition stated a cause of action entitling the plaintiff to recover damages for mental suffering arising from the negligence of the appellant for failure to deliver the telegram upon which the cause of action is based. This embraced all the plaintiff’s claim, except an item of ‘25 cents, the cost of the message.

The Supreme Court in answering the question held that the petition did not state a cause of action, and in effect held that it was subject to a general demurrer.

The only question left in- the case is whether or not the district court and this court have jurisdiction to render a judgment -in favor of appellee for the 25 cents, the cost of the message. In effect it is held in the following cases that where the plaintiff’s demand is reduced by demurrer to a sum less than the amount of which the court would have jurisdiction, that the court is without authority to proceed further, and the case should be dismissed. Lowe v. Dowbarn, 26 Texas, 509; Haddock v. Taylor, 74 Texas, 216; Rowan v. Telegraph Co., 75 Texas, 26; Wood County v. Cate, 75 Texas, 219; Peterson v. Thomas, 24 S. W. Rep., 1124; Thomas v. Telegraph Co., 25 Texas Civ. App., 398; Mc-Faden v. San Antonio, 22 Texas Civ. App., 140 (a writ of error was refused in this case); Keller v. Huffman, 26 S. W. Rep., 863; Doherty v. Galveston, 19 Texas Civ. App., 708; Robinson v. Garrett, 54 S. W. Rep., 270; Hill v. Strauss, 56 S. W. Rep., 540; Roller v. Gundelowitz, 73 S. W. Rep., 1071; Shutz v. Lessman, 92 Texas, 488; Missouri, K. & T. Railway Co. v. Kolbe, 95 Texas, 77; Conner v. Sewell, 90 Texas, 275.

These eases rest upon the doctrine that joining an item or claim for which the law affords no relief or remedy for the recovery thereof with one for which a cause of action exists, when the latter is not of value or amount within the jurisdiction of the court, that jurisdiction does not "exist, and that when this is apparent from the face of the petition, the court will, as a matter of law, in sustaining demurrers, in effect determine that the case alleged is in part fictitious. Mere averment or assertion of a claim or demand will not create a cause of action which the'court can adjudicate, when neither law nor equity recognize that the facts upon which the claim or demand is based furnishes the basis for- any relief. This principle is well illustrated in the case of Conner v. Sewell, 90 Texas, 275. A different rule, however, obtains when want of jurisdiction arises as an issue of fact. When a demand is pleaded for which an action would lie and over which the court has jurisdiction according to the averments of the petition, the presumption will be indulged in the bona fides of the party bringing the suit, and that it is not fictitious or that the demand was not laid at a sum for the purpose of fraudulently conferring jurisdiction; and also that when two or more demands are sued upon, and they are of a nature that can properly be joined in one suit, and for each of which a cause of action would lie, the failure to establish one or more would not defeat the jurisdiction of the court, although the one so established and proven would be for a sum less in amount than the court would originally have jurisdiction of.

Judgment is reversed and cause remanded with instructions to the trial court do dismiss the case at cost of appellees. Cost of appeal is adjudged against appellees.

Ordered accordingly.