Opinion
No. 438.
Delivered February 8, 1894.
1. Transcript in Case Appealed from Justice Court. — When a case tried in a Justice Court is appealed from thence to the County Court, and from that court to the Court of Civil Appeals, by a bond conditioned as required by law, and the conclusions of fact by the County Court shows that there was a transcript from the Justice Court filed in that court, it is unnecessary that said transcript from the Justice Court should be embodied in the transcript to this court.
2. Jurisdiction of Amount — Counter-Claim. — When the amount sued for in the Justice Court is less than $100, and a counter-claim for more than $100 is filed and relied on by defendant, that will confer jurisdiction on this court; but when it appears that the counter-claim, if ever relied on, had been abandoned, and no evidence was offered in support of it, it is not a matter in controversy, and will not support the appeal.
APPEAL from the County Court of Galveston. Tried below before Hon. S.S. HANSCOM, County Judge.
Motion to dismiss appeal.
J.W. Terry and Charles K. Lee, for the motion, cited: Acts Called Sess. 22nd Leg., sec. 5, chap. 15, p. 26.
Scott, Levi Smith, resisting, cited: Railway v. Grant, 1 W. W.C.C., sec. 784; Railway v. Tacquard, 3 Texas Civ. Apps., 250; Scott v. Railway, 4 Willson's C.C., sec. 287; Railway v. Hurlen, 1 W. W.C.C., sec. 582; Dalby v. Murphy, 25 Tex. 354.
Appellee has filed two motions in this case. The first is to strike the case from the docket, because it appears to have been an appeal from the Justice to the County Court, and there is in the record here no transcript from the Justice Court, nor does the record show that an appeal bond was given on appeal to the County Court. The second motion is to dismiss the appeal, because the amount in controversy is less than $100. Appellant has replied to the second motion, that he pleaded in the court below a counter-claim of more than $100, which confers on this court jurisdiction of the appeal.
It appears from the conclusions of fact filed by the county judge, that the County Court obtained jurisdiction of the case by appeal from the Justice Court, and it is not necessary that the transcript from the Justice Court and the appeal bond should have been copied in the transcript filed here for that purpose. The finding referred to shows that there was a transcript from the Justice Court filed in the County Court, and that the case had been appealed by the appellant filing a bond as required by law.
The amount in controversy on a counter-claim, if sufficient, will confer appellate jurisdiction on the Court of Civil Appeals, although the amount claimed by the plaintiff should be less than $100; but the counterclaim must be a matter of controversy, and when it appears, as in this case, if ever relied on, to have been substantially abandoned, and that no evidence was offered in support thereof, it will not support an appeal.
The motion to dismiss will be sustained.
Dismissed.