Austin Real Estate & Abstract Co. v. Bahn , 87 Tex. 582 ( 1895 )

This suit was brought in the District Court of Travis County to recover upon a note for $500 and attorney's fees, and to foreclose a lien upon personal property, the value of which does not appear in the transcript. If the County Court could have had jurisdiction of the case under the Constitution, this court is without jurisdiction to grant a writ of error. Whether the District Court had exclusive jurisdiction of the case or not depends upon the question, whether the value of the property upon which the lien is sought to be foreclosed exceeds the sum of $1000. Marshall v. Taylor, 7 Tex. 235; Smith v. Giles, 65 Tex. 341. In the petition for a foreclosure of the lien it was not necessary to allege the value of the property which was sought to be subjected to the payment of the debt; and it is probably for this reason that the transcript which accompanies the petition nowhere discloses what its value was at the time this suit was instituted. In a suit in which it is necessary neither to allege nor prove the value of the thing in controversy, it is proper for an appellate court to hear affidavits as to its value, in order to determine the question of its jurisdiction. Williams v. Kincaid, 4 Dall., 20; Town of Elgin v. Marshall, 106 U.S. 578. Therefore action upon the application will be suspended for a reasonable time, in order to afford the applicant the opportunity to file affidavits showing that the value of the property upon which the mortgage was sought to be foreclosed exceeds in value $1000.

Delivered February 11, 1895.

Application was refused March 11, 1895. A motion for rehearing was urged.

ON MOTION FOR REHEARING.