King & King v. Porter , 1921 Tex. App. LEXIS 80 ( 1921 )

On Appellants’ Motion for Rehearing.

It is the contention of appellants that we erred in dismissing the appeal herein for want of jurisdiction. >In support of this contention, they cite Simmang v. Ins. Co., 102 Tex. 40, 112 S. W. 1044, 132 Am. St. Rep. 846; Kelly v. Gibbs, 84 Tex. 145, 19 S. W. 380, 563; Bank v. Gross, 200 S. W. 188; Hubbart v. Vacher, 26 S. W. 921; Ins. Co. v. Klaras (Com. App.) 222 S. W. 208; 12 R. C. L. 815; 20 Cyc. 1033.

We have carefully examined these authorities, and do not think they are in conflict with our opinion herein.

In Silnmang v. Insurance Co., supra, it was held that the Supreme Oourt had appellate jurisdiction, for the reason that it was an appeal from a judgment of a district court, in a suit which could not have been brought in a county court; and this for the reason that the statute requires writs of garnishment to be returned to and tried in the court where was rendered the judgment upon which the writ was issued. Texas Constitution, art. 5, § 3; R. S. arts. 271 and 274. The court cites Kelly v. Gibbs, 84 Tex. 145, 19 S. W. 380, 563; Kreisle v. Campbell, 89 Tex. 104, 33 S. W. 852; Townsend v. Fleming, 64 S. W. 1006 — in support of this proposition.

In Kelly v. Gibbs, supra, the issue was: Is it necessary in the trial of a garnishment suit to introduce in evidence the judgment upon which the writ was issued? It was held that it was not, for the reason that the court would take judicial cognizance of such judgment. See opinion on motion for rehearing, 84 Tex. 146-148, 19 S. W. 380, 563. The question of the jurisdiction of the Supreme Court was not involved in that case.

In Bank v. Gross, supra, the issue was: Should the item of cost recovered in the original judgment be included in determining the amount of the judgment upon which the garnishment issued? If it could, as held by the majority of the court, the amount in controversy exceeded $100, for the garnishee answered that he owed the judgment debtor $133.15. This answer was contested. Under such contest, the amount involved was the full amount of the judgment in the original cause.

Hubbart v. Vacher, supra, was tried on the contested answer of the garnishee. The court held that though the cost in the original suit should not be considered, still, inasmuch as the judgment rendered against the garnishee in the justice court was for more than $20, the defendant had the right to appeal from such judgment. R. S. art. 1767. The jurisdiction of the county court of Frio county had been conferred on the district court.

The case of Ins. Co. v. Klaras, supra, is not in point. R. C. L. vol. 12, p. 815, and 20 Cyc. 1033, have reference to the jurisdiction of trial courts in garnishment suits. This matter is fixed by our statute, and is in harmony with the principle announced in these excellent text-books.

[3] The amount in controversy in any case is determined by the pleadings upon which the parties go to trial, and is the largest amount for which judgment could be rendered upon such pleadings. To illustrate: If suit were filed in the county court for a debt of $250, the county court would have jurisdiction to try the ease; but if the plaintiff should amend his petition and allege the amount of the debt to be $150, the county court would lose its jurisdiction of the cause. The pleadings in garnishment are regulated by statute and must be given the effect therein indicated.

The first pleading in a garnishment case is the application for the writ under which the plaintiff seeks to recover of the garnishee the full amount of the judgment which he has or may obtain against the defendant, in the main suit. If the garnishee does not answer, or answers that he is indebted to the judgment creditor in an amount equal to or in excess of sucIl judgment, the plaintiff in garnishment may recover that amount, if no other pleadings are filed. That is the amount then in controversy. But if the garnishee answers that he does not owe the judgment creditor anything, and has none of his property in possession, if such answer is not contested, the plaintiff could not, under the pleadings as they thus stood, recover anything. Nothing would he in controversy. R. S. art. 281. If the plaintiff should controvert such answer, the amount in controversy would be the amount put in issue by such controverting answer. R. S. art. 299.

If the garnishee admits an indebtedness, and such answer is not controverted, the plaintiff is entitled to judgment for the amount admitted and no more. No other amount is in controversy. R. S. art. 293. If the garnishee admits an indebtedness, stating the same, the defendant in the main suit may controvert such answer, and this puts in issue the amount of indebtedness so admitted by the garnishee. R. S. art 300. A third party may intervene and controvert such answer, with like effect.

Applying these principles to the pleading in this case, we find that the only amount in controversy was the $51.51, which the garnishee answered he had belonging to the judgment creditor. The only issue was: To whom did this $51.51 belong?

The amount in controversy, under the pleadings upon which the parties went to trial, being less than $100, this court is without appellate jurisdiction.

The motion for a rehearing is overruled.

Overruled.