Citation Numbers: 94 S.W. 1098, 43 Tex. Civ. App. 405
Judges: Conner
Filed Date: 6/9/1906
Status: Precedential
Modified Date: 10/19/2024
This suit was originally instituted by appellant in the District Court of Gray County to recover of appellees damages in the sum of $1,500, it being alleged in substance that this sum constituted the difference in value between a certain tract of land sold by appellees to appellant as it actually existed and as by them fraudulently represented. By agreement of all parties the venue of the case was thereafter changed to the District Court of Roberts County. In the latter court, on the 7th day of August, 1905, appellant filed an amended petition, it is styled a trial amendment, in which he limited his demand to the sum of $500, the distinct allegation being "that said $500 represented the difference in the value between the said land as it actually existed and as represented by defendant Gray." Appellees move to dismiss the case for want of jurisdiction in the District Court of Roberts County.
As originally presented the District Court of Roberts County undoubtedly had jurisdiction of the case, but it seems equally clear that by the trial amendment appellant deprived himself of the right of being further heard in that court. It is well settled that the County Court and not the District Court has exclusive jurisdiction of a money demand for exactly $500. (See Gulf, C. S. F. Ry. Co. v. Rambolt,
It is suggested that the Act related to pending cases only and that inasmuch as the trial amendment had not been filed at the time the Act began to speak or take effect, no authority existed for a transfer. The majority are of opinion, however, that the trial amendment should be construed as appellant's interpretation of his original petition, and as truly stating the exact limit of his claim for damages which had been erroneously stated or enlarged in the original petition. Until the Act referred to took effect the District Court of Roberts County had jurisdiction of the case viewed either as one of County or District Court cognizance, inasmuch as by law until then the District Court had the *Page 408 jurisdiction of both courts. When the Act took effect the case was apparently one to which the Act did not apply, for on the face of the original petition the amount in controversy gave jurisdiction to the District and not the County Court. As interpreted, however, by the amendment the case at all times was a County Court case and when this fact appeared, was made known by the amendment, the majority think the legislative Act applied, and that the court could and should have then done what it had merely failed to do because of the mistaken or false allegation in the original petition.
The judgment will therefore be reversed and the cause remanded for proceedings in accordance with this opinion.
It appears that upon the trial appellee specially excepted to appellant's original petition "because the said petition charges the alleged fraud for which plaintiff is seeking to recover was perpetrated more than five years before the institution of this suit, and fails to allege facts that will take said claim out of the statute of limitation; wherefore defendants say that said cause of action is barred by the two years statute of limitation," etc. The court sustained this exception, whereupon appellant filed the amendment mentioned above and in the original opinion, but the court ruled that the trial amendment did not meet the ruling of the court upon the special exception, and appellant having declined to further amend, the cause was dismissed. We think the court erred in the action stated. It was alleged in both the original and amended petitions that appellee Gray at the time of the fraudulent representations charged was in possession of the land afterwards proven to be not a part of the survey appellant had purchased; that appellee pointed the same out as part of the survey purchased, and that appellant believed such statements and was without reason for thinking otherwise. In the amended petition it *Page 409 was alleged that appellant went into possession of the identical land so pointed out and remained in possession to the exact boundaries as pointed out until the 5th day of October, 1899, when appellant sold the land to another; that appellant, relying upon appellees' said representations, likewise represented the land as part of the survey sold; that appellant's vendee remained in possession until January 29, 1904, when he was ousted from the 116 acres of land so lost; that this date was the first intimation appellant had of the falsity of the representations made by appellee Gray; that appellant had continuously relied upon said representations as being true up to said date, and that appellant "could not have known the falsity of said representations by the use of ordinary diligence at any time theretofore," etc. There was no exception to the trial amendment and we think the averments are sufficient to admit proof on appellant's part that he was not negligent in his failure to have earlier discovered the fraud charged. It has sometimes been said that actual concealment is necessary, and that the mere fact of nondiscovery of a fraud is not enough. This can not mean that the defrauded party must necessarily have used some affirmative means to discover the fraud, for he might not have the slightest suspicion of its existence. The rule only requires that the defrauded party's ignorance must not be due to negligence; that he remains ignorant without any fault of his own; that he has not discovered the fraud and could not by any reasonable diligence discover it. The question is one of negligence vel non. (2 Pomeroy's Equity Jurisprudence, 3d ed., sec. 917, note 2, and authorities therein cited.)
This case is perhaps distinguishable from the case of Bass v. James,
For the error of the court discussed the motion for rehearing is granted, the judgment reversed, and the cause remanded to the District Court of Roberts County.
Reversed and remanded. *Page 410