Mabry v. Little , 19 Tex. 337 ( 1857 )

Wheeler, J.

Whether a plaintiff can entitle himself to an action in a Court of limited jurisdiction, by entering a credit or release, when done merely to bring the case within the jurisdiction, has been differently decided by different Courts. (Simpson v. McMillon, 1 Nott & Mc. 192, & n. a ; 2 Id. 487 ; Strob v. Uhrich, 1 Watts & Serg. 57 ; Grayson v. Williams, Walker, 208; Bird v. Nicholls, 2 Porter, 386 ; 5 Stew. & Port. 198.) It is at least questionable whether it can be done. But where learned Judges disagree, it would be an extremely harsh docti’ine to hold that an unlearned Justice of the Peace must decide rightly at his peril: and if he should take jurisdiction, and, upon argument of learned counsel, and research and deliberation, this Court should finally conclude he was in error, he must be deemed a trespasser. If such a determination would have the sanction of law, it requires no learning to perceive that it would be revolting to common sense and justice. It need not be decided in the present case; for we are of opinion that, if it be admitted that the Justice acted without jurisdiction and tortiously, the plaintiff, by submitting to the jurisdiction, and agreeing to submit the case to the award of arbitrators, waived the trespass and wrongful acts of the defendants. Consent cannot give jurisdiction ; but it can waive a trespass or other tort; and we are of opinion that the voluntary submission to arbitration, amounted to such a waiver in the present case. If the judgment rendered by the Justice, upon the award of the arbitrators, was not such as should have been rendered upon the award and the evidence before the Justice, the plaintiff had his remedy ; but not by an action for damages. (See Haldeman v. Chambers, supra.) If he had a right of action, it was because the-Justice had not jurisdiction of the case, and because he improperly issued the writ. But these grounds of action he waived. The charge of the Court was not unfavorable to the plaintiff. The instructions asked were rightly refused for the reason that they sought to hold the defendant responsible to the plaintiff for a trespass which the latter, by his acts, had waived, and for the further reason that they were so framed as improperly to lead, or direct the mind of the jury, to the result desired by the party. There is no error in the judgment and it is affirmed.

Judgment affirmed.