Midland Casualty Co. v. Arnott , 1917 Tex. App. LEXIS 1155 ( 1917 )

BOYCE, J.

The suit was on a judgment for $02.20, dated March 23, 1914, which by its terms bore interest from said date at the rate of 6 per cent, per annum. The judgment in this ease was rendered September 6, 1917, and was that plaintiff recover the said sum of $92.20, with 6 per cent, interest from March 23, 1914, to wit, $18.60 — an aggregate of $110.80. Appellee moves to dismiss the appeal for want of jurisdiction in this court.

Under the statute (article 1589, § 3) this court has jurisdiction if “the judgment, or the amount in controversy, or the judgment rendered, shall exceed $100.00, exclusive of interest and costs.” The -qualification “exclusive of interest and costs” evidently ap-Xfiies to each of the jurisdictional facts, to wit, “the judgment,” “the amount in controversy,” and “the judgment rendered.” We think it clear that the amount in controversy, exclusive of interest and costs, was $92.20, because the judgment sued on was for the principal sum of $92.20, and by its terms drew interest at the rate of 6 per cent, per annum, and the sum of $18.60 was recovered as interest eo nomine. Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031. Was the judgment rendered in this case, exclusive of interest and costs, in excess of $100? It would not be unless we construe the term “interest” as meaning only the interest that the judgment itself should bear after its rendition, and not interest included eo nomine in the judgment itself. The intention of the lawmakers seems to have been to exclude the consideration of interest eo nomine in determining the jurisdiction of the court, and this exclusion, we think, should apply whether it is interest which the judgment itself bears or interest already accrued and included in the principal of the judgment. This seems to have been the holding in the case of Ft. Worth State Bank v. Little, 168 S. W. 55, and the inference to be drawn from the case of Kelley v. Audra Lodge, etc., 176 S. W. 784.

We have examined the cases referred to by appellant, and do not consider them inconsistent with our conclusion. They are all cases from other states. In some of them the suits were to recover on a former judgment, including the costs of the former suit, and it was held that the costs which are excluded in determining the jurisdiction were costs of the suit at bar, and not those incurred in some other suit, and which were sought to be collected in the suit at bar. The plaintiff in this case did not seek to recover the costs incurred in the former suit. Some of the decisions referred to by appellant where interest was taken into consideration in determining the amount in controversy, are based on statutory provisions which do not appear to contain the provision of our statute excluding interest in determining the jurisdiction.

We are of the opinion that we are without jurisdiction, and the appeal should be dismissed.

<§s»For other oases see same topic and KEY-NUMBER in all Key-Numberea Digests and Indexes