Ball v. Beaty , 1917 Tex. App. LEXIS 1260 ( 1917 )

MOURSUND, J.

Appellee sued appellants, Thomas Ball and A. W. Ball, in justice’s court to recover $163.35, alleged to be due him as wages for labor rendered on the farm of appellants, Thos. Ball and A. W. Ball, and in caring for certain stock for them. He sought a foreclosure of a statutory laborer’s lien on 253 acres of oats and 25 head Of cattle. He impleaded J. W. Nixon and Lamar Wilkinson, on the ground that they had purchased some of the oats after he filed his lien. He obtained judgment in the justice’s court, and upon appeal to the county court appellants filed a plea to the jurisdiction of the court, alleging that the value of the property on which the lien

was asserted exceeded $200. The county court heard evidence upon the issue, and found that the value of the property exceeded $200, but nevertheless overruled the plea to the jurisdiction, and rendered judgment for plaintiff against Thos. Ball and A. W. Ball for the amount sued for by him, and for foreclosure of lien upon the oats and cattle; also against Nixon for $55, and Wilkinson for $33.60, to be made by execution if the amount of the judgment could not be made out of property covered by the lien still in' the hands of Thos. Ball and A. W. Ball.

[1,2] The county court found that the property against which the lien was asserted was worth more than $200, and the undisputed evidence sustains such finding. Appellee contends that the fact that a lien existed on the oats and that the cattle had been sold prior to the filing for record of the plaintiff’s account should be taken into consideration in determining the value of the property. Such facts are immaterial. Jurisdiction is fixed by allegations of the existence of a lien, and not lost by failure to prove the allegations.

Although the allegations of the plea to the jurisdiction were sustained by the undisputed evidence, and found to be true by the court, such plea was overruled, on the theory that the rule that in suits to foreclose liens on personal property the value of the property, if greater than the debt, fixes the jurisdiction applies only to contract liens and not to liens existing by virtue of article 5644, Vernon’s Sayles’ Statutes. Upon investigating the question of jurisdiction we found that it had been held in cases of foreclosure of landlords’ liens that jurisdiction was fixed by the amount of the debt. Lawson v. Lynch, 9 Tex. Oiv. App. 582, 29 S. W. 1128; Ingraham • v. Rich, 136 S. W. 549; Maniré v. Wilkinson, 136 S. W. 1152. We also found that it had been held that in a suit by a laborer to foreclose his statutory lien, given by article 3180 (R. S. 1879), the value of the boat was held to be the amount in controversy (Smith v. Giles, 65 Tex. 341), and that in suits to foreclose the common-law lien of a carrier for freight charges, which lien is recognized by statute (articles 725 and 726, Vernon’s Sayles’ Statutes), the value of the goods determined the jurisdiction (T. & N. O. Ry. Co. v. Rucker, 38 Tex. Civ. App. 591, 88 S. W. 815). In the last-mentioned case the court undertook to distinguish the case of Lawson v. Lynch and others mentioned, stating that the decision in each was controlled by the provision of the statute which only authorizes so much of the crop to be seized and sold as might'be necessary to satisfy the debt sued for. Upon a certified question, the Supreme Court approved the decision, and stated that the

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I question had been ably discussed. Our examination of the opinion in the Rucker Case convinced us that the case was distinguished from the cases involving landlords’ liens, on the ground that the statute giving a lien for freight charges contained no provision directing the sale of only so much of the property as was necessary to pay the debt and costs.

The case of Allen v. Glover, 27 Tex. Civ. App. 483, 65 S. W. 379, has been often cited as falling within the exception recognized in the case of Lawson v. Lynch, but it was a case involving the foreclosure of a laborer’s lien under the statute, and the court apparently based its decision on the proposition that by an amendment of the pleading in the county court plaintiff asserted a lien upon only so much of the crop as was necessary to satisfy the debt and costs, and that'such pleading was as effective to create an exception to the general rule as the provision in the statutes giving a lien to landlords. We could not subscribe to the theory that any amendment in the county court could confer jurisdiction when the justice’s court had none, and regarded the opinion as unsatisfactory. The case was cited in the Rucker Case, hut evidently under the belief that it was based on a statute which only authorized so much of the crop to be seized and sold as might be necessary to satisfy the debt sued for. We concluded that, as the statute involved in this case contained no such provision as the one in the landlords’ statute, under the holding in the Ruck-er Case, we would be compelled to hold that the value of the property, if greater than the debt, controlled in determining jurisdiction. The same conclusion was reached in the case of Ferrell v. McCormac, 184 S. W. 1081, and, without relying upon the Rucker Case, the Amarillo court arrived at the same conclusion in the case of Red Deer Development Co. v. Huggins, 155 S. W. 949.

After deciding the case, we discovered that the Supreme Court had granted a writ in the Ferrell v. McCormac Case, making the following notation (granted January 13, 1917):

“We are inclined to the view that the same rule governing the enforcement of a landlord’s lien should be applied to the enforcement of a laborer’s lien, that is that the enforcement of the lien should be restricted to only so much of the property as is necessary to satisfy the debt. If this is correct the debt and not the value of the property should equally determine the jurisdiction of the court. In T. & N. O. v. Rucker [38 Tex. Civ. App. 591] 88 S. W. 815, it is stated that the statutes there considered authorized the sale of all the property covered by the lien, which distinguishes the case from this one and from Lawson v. Lynch [9 Tex. Civ. App. 582] 29 S. W. 1129. We think the justice court judgment was, therefore, not void. See Allen v. Glover [27 Tex. Civ. App. 483] 65 S. W. 379.”

[3] While notations made upon granting writs express only the tentative' opinion of the court, and are not of authoritative value, the one in question indicated such a decided opinion that we set aside our judgment and again considered the authorities.

In the cases of Marshall v. Taylor, 7 Tex. 235, Smith v. Giles, 65 Tex. 341, and Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742, the leading cases which established the rule that in foreclosure of contract liens the value of the property, if greater than the debt, controls as to jurisdiction, we do not find any statement that the holding was based on the statute passed May 13, 1846, now known as article 2000 (R. S. 1911).

[4] However, in some recent cases by Courts of Civil Appeals' there are intimations that the provision of the statute directing the sale of all of the property furnished the basis for holding that the value of all the property was put in .controversy in suits to foreclose contract liens, and the notation made by the Supreme Court adds weight to that view. However, article 2000 (R. S. 1911) relates to judgments for the foreclosure of “mortgagés and other liens,” and is broad enough to cover statutory as well as contract liens, and we believe it was intended to provide a rule relating to all liens in the absence of special provisions relating to particular liens. There being no such special provision in the statute giving laborers a lien, it seems clear that the judgment would be framed in accordance with the provisions of said article 2000. We, •therefore, find ourselves unable to find any ground upon which this case can be distinguished from the Rucker Case and the cases involving contract liens. We think the criticism of the doctrine, that the value of the property if greater than the debt controls in determining jurisdiction, made in the Lawson v. Lynch Case is sound, but as the rule is well settled, and we are unable to perceive any ground on which we can consistently apply a different rule in this case, we find ourselves compelled to hold that the county court did not have jurisdiction in this case.

It is with regret that we arrive at this conclusion, for it would be far better in this class of cases to have jurisdiction determined by the amount of the debt.

[5] Appellee, by cross-assignment, com-, plains of the failure of the court to allow him a jury trial on the issue as to the value of the property. This was erroneous, for issues qf fact arising upon pleas to the jurisdiction, pleas of privilege, and pleas in abatement should be submitted to the jury when a jury has been impaneled in the ease. However, when the evidence is undisputed, as it is in this case, it is proper to peremptorily instruct the jury to return a verdict in accordance with such undisputed evidence. There is no merit in the contention that on account of this error by the court we would be justified in discarding the evidence introduced and ’ affirming the judgment.

Ordinarily, the proper practice is for this court to reverse the judgment and dismiss the case when the trial court had no jurisdiction, and we have no reason to believe that a second trial of the issue of fact can result in establishing that the oats and cattle were of a value less than $200. In this case, however, the valúe, upon which we must base our judgment, was arrived at without the aid of a jury, although one was properly demanded, and we believe the proper practice is to reverse the judgment and remand the cause, even though of the opinion that a second trial will result in a finding that the oats and cattle were worth much more than $200.

Judgment reversed and cause remanded.