Summary
In Olloqui v. Duran, 92 S.W.2d 436, 437, this very point was again before the Supreme Court; speaking for the Commission of Appeals in that case, Judge German said: "The Supreme Court has in the case of Campsey v. Brumley, 55 S.W.2d 810, directly settled the proposition that, in a case in the county court seeking to foreclose a mortgage lien, a petition which does not allege the value of the mortgaged property is not sufficient to support a judgment, and the question is one which can be raised on appeal as fundamental error."
Summary of this case from Thompson v. DaileyOpinion
No. 6592.
Decided April 1, 1936.
1. — Courts — Conflict of Decisions — Jurisdiction.
The holding by a court of civil appeals that in a suit to foreclose a chattel mortgage it was not essential to show the value of the property to confer jurisdiction but that it was necessary to show that the amount in controversy exceeded the jurisdictional amount in order to oust the court of its jurisdiction, is in conflict with decision of the Supreme Court and those of other courts of civil appeals.
2. — Appeal and Error — Petition — Fundamental Error.
In a suit to foreclose a mortgage lien, brought in the county court, the failure to allege the value of the mortgaged property is insufficient to support a judgment, and such question may be raised on appeal as fundamental error. The mere allegation in the petition of the plaintiff showing the purchase price of the property would not be sufficient.
Error to the Court of Civil Appeals for the Fifth District, in an appeal from Dallas County.
Suit by Anselmo Duran against Hemila T. Vda Olloqui to recover $266.31, balance due on a note, with interest and attorney's fees, and to foreclose mortgage lien on certain personal property. Judgment was rendered in the County Court for plaintiff and for foreclosure of lien and this judgment was affirmed by the Court of Civil Appeals ( 60 S.W.2d 808). The defendant has brought error to the Supreme Court.
The case was referred to the Commission of Appeals, Section A, for their opinion thereon and the Supreme Court adopted same and ordered judgment entered in accordance therewith.
Judgments of the County Court and the Court of Civil Appeals are set aside and cause remanded to County Court.
Frank R. Graves, of Fort Worth, for plaintiff in error.
The county court being a court of limited jurisdiction it was necessary that plaintiff's petition affirmatively show that the court had jurisdiction to render judgment and his suit being for a debt and for foreclosure of a chattel mortgage lien it was fundamental error for the court to render judgment foreclosing a chattel mortgage lien on personal property the value of which does not appear in plaintiff's petition. Kipp v. Anglin, 270 S.W. 893; Myers v. Dodson, 254 S.W. 1112; Wilson v. Ford, 159 S.W. 73.
B. W. Ashworth, C. E. Farrall, and A. A. Kern, of Dallas, for defendant in error.
Although the petition may have alleged the value only in a manner that is evidentiary, the parties having treated and construed it as sufficient throughout the history of the case to show value, it should be construed as sufficient to fix jurisdiction. 31 Cyc., 714, 723; 21 R. C. L., 464, sec. 30; Cantrell v. Cawyer, 162 S.W. 919; Reeves v. Fuqua, 183 S.W. 34.
Defendant in error, Anselmo Duran, who will be referred to herein as plaintiff, brought this suit in the County Court of Dallas County, at Law No. 2, against plaintiff in error, Hermila T. Vda Olloqui, referred to herein as defendant. Plaintiff sued for the sum of $266.31, balance on a note, with interest and attorney's fee, and to foreclose a mortgage lien on certain personal property. A judgment was rendered in favor of plaintiff with foreclosure of the mortgage lien and this judgment was affirmed by the Court of Civil Appeals. 60 S.W.2d 808.
The writ of error was granted upon conflict in decisions. It was urged in the Court of Civil Appeals that the county court was without jurisdiction because the petition did not allege the value of the personal property upon which the mortgage lien was foreclosed. The Court of Civil Appeals held that this was not jurisdictional. The precise holding is as follows:
"In a suit to foreclose a chattel mortgage, it is not essential that the value of the property be shown to confer jurisdiction, but in order to oust the court of such jurisdiction, it is essential to affirmatively show that the amount in controversy exceeds its jurisdictional amount."
1, 2 This holding is in conflict with the holding of the Supreme Court and of courts of civil appeals in numerous cases. The Supreme Court has in the case of Campsey v. Brumley (Com. App.), 55 S.W.2d 810, directly settled the proposition that in a case in the county court seeking to foreclose a mortgage lien, a petition which does not allege the value of the mortgaged property is not sufficient to support a judgment, and the question is one which can be raised on appeal as fundamental error.
The only allegation in the petition tending to show value of the property was the allegation that "the amount of the purchase price being $516.31." This was not sufficient. Smith v. Horton, 92 Tex. 21, 46 S.W. 627.
The judgments of the County Court and of the Court of Civil Appeals are set aside, and the cause is remanded.
Opinion adopted by the Supreme Court April 1, 1936.