
    CLONTS et al. v. JOHNSON.
    (No. 780-4773.)
    Commission of Appeals of Texas, Section B.
    May 18, 1927.
    1. Appeal and error <&wkey;759 — Court of Civil Appeals can consider only fundamental errors appearing on record, where assignments are not substantially copied in appellant’s brief.
    Where appellant wholly fails to copy assignments of error in his brief, Court of Civil Appeals must confine its consideration to fundamental errors apparent on face of record.
    2. Appeal and error <&wkey;759 — Assignments must be at least substantially reproduced in brief on appeal to Court of Civil Appeals (Court of Civil Appeals, rule 32; and district and county court rule I Ola). *
    Though assignments required to be filed need not be literally copied in brief on appeal to Court of Civil Appeals, assignments must be at least substantially reproduced therein, under rule 32, Court of Civil Appeals, and rule 191a, district and county court.
    3. Appeal and error <g=w7l9(l) — Assignment is necessary to have ruling of trial court reviewed.
    Assignment is necessary to reach ruling of trial court, ruling being matter to be reviewed.
    4. Justices of the peace i&wkey;>l64(l) — Transcript of proceedings in justice court on appeal to county court need not show affirmatively that amount in controversy was within justice’s jurisdiction.
    Rule that record must show affirmatively that amount in controversy in trial court was within jurisdiction of court does not apply to transcript of proceedings in justice court on appeal therefrom to county court.
    5. Justices of the peace t&wkey;>42 — Determination of jurisdiction by controverted amount applies in district, county, and justice courts.
    Determination of jurisdiction by amount in controversy applies whether suit is in district, county, or justice court.
    6. Courts <&wkey;-118 — Justices of the peace &wkey;>3l —District, county, and justice courts are courts of general jurisdiction within limits of Constitution.
    District, county, and justice courts are all courts of general jurisdiction within limits of Constitution fixing jurisdiction.
    7. Courts &wkey;»!22 — Court’s jurisdiction is determined by amount claimed in pleadings, regardless of truth of allegations, provided allegations are not fraudulent.
    Jurisdiction of court over particular cause of; action asserted is determined by amount claimed and in controversy under pleadings, regardless of whether allegations are supported by evidence, provided allegations are not fraudulent.
    8. Justices of the peace &wkey;>174(22) — Pleadings in justice court and on appeal to county court in civil cases are oral. •
    Proceedings are had on oral pleadings in justice courts in civil cases and in county court on appeal from justice court judgments in such cases.
    9. Justices of the peace <8=»58(5) — Oral pleadings in justice court determine amount in controversy.
    Oral pleadings in justice courts determine amount in controversy for purpose of jurisdiction to same extent as written pleadings.
    10. Pleading <&wkey;4— Pleadings are essential to and determine extent of recovery.
    Pleadings are essential to recovery and determine extent of possible recovery.
    11. Appeal and error &wkey;>674 — Reviewing court must have pleadings before it to determine trial court’s jurisdiction, whether pleadings are oral or written.
    Reviewing conrt, to determine trial court’s jurisdiction, must have before it pleadings upon which cause was determined whether written or oral.
    12. Appeal and error &wkey;>518(1) — Oral pleadings on appeal from judgment of county court in case appealed from justice court need not appear in record.
    On appeal to Court of Civil Appeals from decision of county court in case appealed from justice of the peace, pleadings need not appear as part of record, as pleadings, being oral, could only appear by agreement or testimony in record or by proper bill of exceptions.
    13. Appeal and error &wkey;>5l8(l) — Oral pleadings can appear in record only by agreement, testimony, or bill of exceptions.
    On appeal in case tried in justice and county courts on oral pleadings, such pleadings can appear only by agreement, testimony in record, or bill of exceptions.
    14. Justices of the peace <&wkey;J64(2) — Justice’s brief statement of oral pleadings is not equivalent of pleadings themselves.
    Brief statement of justice describing oral pleadings of parties is not equivalent of pleadings themselves.
    15. Justices of the peace <&wkey;>54(l) — Jurisdiction given justice' by oral pleadings is not lost by want of correct statement thereof.
    Justice does not lose jurisdiction of case for want of correct statement of pleadings, where oral pleadings of parties presented matter within court’s jurisdiction.
    16. Appeal and error 1091(1) — Justices of the peace <&wkey;l83(f) — It is presumed pleadings in justice court and on trial de novo on appeal to county court were oral.
    In the absence of evidence showing nature of pleadings in justice court or in .county court on appeal where trial is de novo, it is presumed pleadings were oral.
    17. Appeal and error <@=>672 — Recitals in judgment of justice court showing property in controversy exceeded jurisdictional amount held not fundamental error apparent on face of record requiring reversal for want of jurisdiction.
    Fact that recitals in judgment of justice court in case appealed therefrom to counity court showed affirmatively that value of property in controversy exceeded justice’s jurisdiction did not constitute fundamental error apparent on face requiring reversal for want of jurisdiction, where transcript failed to disclose value of property and did not contain pleadings.
    18. Appeal and error <&wkey;934(2) — Presumption that judgment is supported by pleadings ap- * plies only to judgments regularly entered.
    Presumption that judgment is supported by pleadings applies where judgment is regular, not where judgment is erroneous.
    19. Appeal and error <&wkey;l091(3) — On appeal from county court judgment in case originating in justice court it is presumed justice court had jurisdictio.n.
    On appeal from judgment of county court in action originating in justice court it will be presumed justice court had jurisdiction, in absence of showing to contrary in record.
    20. Appeal and error <&wkey; 1091 (3) — Jurisdiction of county court on trial de novo on appeal from justice court is shown by presumption that justice court had jurisdiction.
    On appeal from judgment of county court in case which originated in justice court, unre-butted presumption of jurisdiction of justice court helé to show prima facie, jurisdiction of county court on trial de novo.
    Certified questions from Court of Civil Appeals of Tenth Supreme Judicial District.
    Suit by J. D. Johnson against D. B. Clonts, J. B. Holder, and others, begun in justice court and appealed by defendants named to county court after judgment for plaintiff. Judgment for plaintiff, and defendants named brought error to the Court of Civil Appeals. On questions certified to the Supreme Court after reversal by the Court of Civil Appeals and dismissal of plaintiff’s cause.
    Questions answered.
    R. W. Cowan, of Mart, for plaintiffs in error.
    Morrow & Stollenwerck, of Hillsboro, for defendant in error.
   On Certified Questions.

SPEER, J.

This cause is before us upon certified questions from the Tenth District.

The following portion of the certificate will disclose everything necessary to answers to the questions propounded:

“This suit was instituted in the justice court of Hill county by J. D. Johnson, defendant in error herein, against Amos Durham, S. D. Durham, the First National Bank of Waco, and plaintiffs in error D. B. Clonts and J. B. Holder. The parties will be designated as in the trial court. The justice of the peace, apparently at the time of the institution of the suit, entered on his docket the following: ‘Suit on note and mortgage for $134. Filed December 30, 19*24.’ The docket of the justice of the peace shows that the case came on for trial on February 13*, 192B-, and that the plaintiff then' dismissed his suit against S. D. Durham and the First National Bank. Said docket snows in that immediate connection the following: ‘Plaintiff sues fur his debt on his note and for foreclosure of a chattel mortgage and for conversion of two bales of cotton described in citation herein against J. B. Holder and D. B. Clonts. Defendants D. B. Clonts and J. B. Holder enter general denial.’
“The ease was tried before a jury and the following, verdict rendered:
“ ‘We, the jury, assess judgment against defendants as asked for and for foreclosure of tire mortgage lien on the cotton described and prayed for by plaintiff. H. E. Jones, Foreman.’
“The court entered a judgment on said verdict awarding the plaintiff a judgment against Amos Durham, D. B. Clonts, and J. B. Holder in the sum of $135, with interest from date and costs and a foreclosure of his mortgage on said two bales of cotton.
“Defendants Clonts and Holder prosecuted an appeal to the county court. The record of the proceedings in that court is silent with reference to pleadings. There was a trial by jury, a verdict in favor of plaintiff against all the defendants for the sum of $131.72, and judgment in accordance with said verdict. Defendants Clonts and Holder present said judgment to this court for review by writ of error.
“The transcript contains a motion for new trial filed in the county court by these defendants and an order of the court overruling the same. No other or further assignments of error were filed. None of the assignments presented in said motion for new- trial are copied in the brief. This court has consistently held that only fundamental error appearing on the face of the record will be -considered when no assignments of error are copied m the brief. We therefore considered only such of the propositions presented by defendants as related to the jurisdiction of the justice court, in which this suit originated. Certain recitals in the judgment rendered by the justice court in this case show that the two bales of cotton upon which that court rendered a judgment of foreclosure were within the aggregate more than $200, the limit of jurisdiction in that court. There is no contention that these recitals were untrue. On the contrary, the statement of facts brought up with the transcript in this case shows affirmatively that said cotton in the aggregate did exceed in value the sum of $200. This court considered that said recitals in the judgment constituted a part of the ‘face of the record,’ and, based thereon, reversed the judgment of the county court and dismissed the cause. * * *
“We therefore deem it advisable to present for your determination the following questions of law:
“Eirst Question. Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, should the Court of Civil Appeals confine its consideration of the case to fundamental error apparent on the face of the record, or should it in the exercise of its discretion, if the ends of justice require, consider the points or propositions presented in such.brief as ground for reversal, notwithstanding such failure?
“Second Question. Does the rule that the record must show an affirmative allegation that the value of property upon which foreclosure of a mortgage lien is sought in a court of limited jurisdiction is within the jurisdiction of such court apply to the transcript of the proceedings in a ju'stiee court when appeal is taken therefrom to the county court?
“Third Question. Where the recitals in the judgment of the justice court in a ease appealed therefrom to the county court show affirmatively that the property upon which the foreclosure of a mortgage lien is sought and recovered is of greater value than $200, the jurisdictional limit of said court, and such transcript fails to disclose that any value of said property was alleged in the pleadings, does fundamental error appear on the face of the record?
“Fourth Question. Does it appear from the record in this case that the cause of action.asserted by plaintiff, Johnson, against defendants Olonts and Holder was for conversion only, and that the same was separable from his action for foreclosure, and that the justice court had original jurisdiction to hear and determine his demand against said defendants and to render a valid judgment thereon?”

The questions should be answered categorically as follows:

First. Where an appellant or plaintiff in error wholly fails to copy any assignments of error in his brief, the Court of Civil Appeals should confine its consideration of the case to those fundamental errors apparent on the face of the record. Its authority to revise the action of the lower court is limited to those questions (not fundamehtal) duly assigned as error, and it has no discretion, even though it thinks the ends of justice require such course, to substitute a method of its own for reviewing the judgment of the lower court for that method prescribed by the lawmaking power. While it is not necessary that the assignments required to be filed below should be literally copied into the brief, yet they must be at least substantially reproduced. Rule 32, Court of Civil Appeals, .and rule 101a, district and county courts; Seby v. Craven Lumber Co. (Tex. Civ. App.) 259 S. W. 1093; Equipment Co. v. Luse (Tex. Civ. App.) 250 S. W. 1104; Green v. Shamburger (Tex. Civ. App.) 243 S. W. 601; Carey v. Tex. Pac. Coal & Oil Co. (Tex. Civ. App.) 237 S. W. 309; Green v. Hall (Tex. Com. App.) 228 S. W. 183. There is a substantial difference between -an- assignment of error and a proposition submitted thereunder. The one complains of some action of the court, and the other merely sets forth the reasons why such action is erroneous. It takes the assignment to reach the ruling, and it is the ruling that is to be reviewed by. the appellate court. Roberson v. Hughes (Tex. Com. App.) 231 S. W. 734; McDaniel v. Turner (Tex. Civ. App.) 269 S. W. 496; International, etc., Ass’n v. Griffing (Tex. Civ. App.) 264 S. W. 263; Ford v. Flewellen (Tex. Civ. App.) 264 S. W. 602; Chenault V. Honaker (Tex. Civ. App.) 261 S. W. 825.

Second. The rule so often repeated in the decisions that the record must show affirmatively that the amount in controversy in the trial court was within the jurisdiction of that court does not apply to the transcript of the proceedings in a justice court when appeal is taken therefrom to the county court.

Jurisdiction under our system in most cases is determined by the amount in controversy, and this is true whether the suit be in the district court, the county court, or the justice court. All of our courts under our scheme of jurisdictions are courts of limited jurisdiction, yet all of the courts named are courts of general jurisdiction within the limits of the Constitution fixing jurisdiction.

In all cases the pleadings determine the amount in controversy, and therefore the jurisdiction of the particular cause of action asserted. Dwyer v. Bassett, 63 Tex. 274; Hoffman v. Cleburne, etc., Ass’n, 85 Tex. 409, 22 S. W. 154.

It is not the truth of the allegations that determines the jurisdiction, but it is the amount claimed in the petition (or other jurisdictional fact) that controls such matter. A petition asserting an amount or fact bringing the case within the jurisdiction of the trial court confers jurisdiction on that court, even though the evidence may show, and the court may find, against such allegation. Dwyer v. Bassett, supra; Hoffman v. Cleburne, etc., Ass’n, supra. Of course, if such allegation showing jurisdiction is fraudulently made for the purpose of conferring jurisdiction, that fact may be put In issue by a proper plea, and the jurisdiction will then depend upon the verdict or finding upon such contested issue. But in the absence of such contest of jurisdiction, the allegations of the petition will be accepted as conferring jurisdiction.

Under our statutes the pleadings in the justice court in civil cases are oral, but it is nevertheless true that such pleadings determine the amount in controversy precisely the same as do written pleadings, for whether the pleadings are written or oral they are essential to a recovery and they necessarily determine the extent of the possible recovery. There can be no recovery in the absence of pleadings. Y. M. C. A. of Dallas v. Schow Bros. (Tex. Civ. App.) 161 S. W. 931; Alvis v. Hardware Co. (Tex. Civ. App.) 218 S. W. 538.

So that in all cases, in order for a reviewing court to determine the jurisdiction of a trial court, it is necessary for it to have before it the pleadings upon which the cause was determined, whether such pleadings be written or oral. The necessity and reason are the same in both cases.

Now, in appeals from causes originating in the county court or the district court where such proceeding is by statute required to be upon written pleadings, such pleadings necessarily' constitute a part of the record in the higher courts, while in those cases originating in the justice court and which reach the Court of Civil Appeals through an appeal to the county' court, the trial being authorized in both the justice and the county courts upon oral pleadings, such pleadings are not ordinarily shown in the appeal to the Court of Civil Appeals, and can only appear by agreement, or testimony in the record, or be evidenced by a proper bill of exceptions. Williams v. Deen, 5 Tex. Civ. App. 575, 24 S. W. 536.

It is true the statute prescribing that the pleadings in the justice court may be oral likewise prescribes that a-brief statement of the same may be made by the justice on his docket, but this is merely a “brief statement,” and is in no sense at all' the pleadings themselves. It is not the province of this brief statement to set forth the full pleadings. Such pleadings are permitted by law to be oral, and. where a party has thus pleaded his case in such court, the court cannot lose its jurisdiction for want of a correct •statement by the justice. In the absence of evidence showing what the pleadings were in the justice court or in the county court as to that, on appeal from the justice court where the trial is de novo, there is a presumption that the pleadings were oral. Austin, etc., Co. v. Anderson, 85 Tex. 88, 19 S. W. 1025; Davis v. Sorrenson (Tex. Civ. App.) 27 S. W. 209; Patty v. Gibson (Tex. Civ. App.) 23 S. W. 392; Williams v. Deen, 5 Tex. Civ. App. 575, 24 S. W. 536; Heidenheimer Co. v. H. & T. C. Ry. Co. (Tex. Civ. App.) 197 S. W. 886. And therefore such pleadings are not necessarily shown in an appeal from such judgment. It is not contemplated by the Legislature that they should be. It is only where some question of their sufficiency arises and the party complaining sees fit to bring such pleadings before the reviewing court that they do appear in the record.

The expression so frequently found in the decisions, that the record must show affirmatively the jurisdiction of the trial court will be found to have occurred in those cases where the pleadings were properly before the reviewing court.

An examination of the cases cited by the Court of Civil Appeals in its opinion prepared in this case and those relied on for a dismissal will show that they are eases in which the pleadings were before the appellate court and it therefore became a question of construction of the pleadings.

While most of the cases referred to are decisions by the Courts of Civil Appeals, all of them go back to the Supreme Court decision of Cotulla v. Goggan, 77 Tex. 32, 13 S. W. 742. That .was a suit originating in the justice court to recover a balance of $155.11 due upon a written contract and to foreclose a mortgage upon a piano. In the’ justice court a plea to the jurisdiction was filed in which it was alleged that the piano exceeded in value the sum of $200. It was held that:

“If the justice court did not have jurisdiction by reason of the value of the property upon which the lien was sought to be enforced, the Want of jurisdiction could not be cured in the district court by an abandonment of the claim of lien; and that although plaintiffs may have dismissed in the district court so much of their action as sought to enforce the mortgage, yet it was the right of the defendants to insist upon their dilatory plea and prove that the value of the piano exceeded $200, and thereby to defeat the jurisdiction and secure a dismissal of the suit.”

So that, this parent case is one where the real issue of jurisdiction under the pleadings in the justice court was before the Supreme Court for decision, and it cannot, nor can the many cases following it, be construed unqualifiedly as an authority for the broad proposition that in all cases the jurisdiction of the trial court must affirmatively appear in the record.

Another case by the Supreme Court involving in a measure the question under consideration is Pecos, etc., Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294. That was a certified question from the Court of Civil Ap^ peals for the Second District, in which the court uses the following language:

“Prom the statement which accompanies the certified question we conclude that the cause of action set up in the amended petition filed in the county court was the same as that set up in the justice court. * * * The amount in controversy in this case was the sum of $253.50 and of that sum the justice court had no jurisdiction. After the suit was instituted the plaintiff could not be permitted to remit a portion of the claim sued upon for the purpose of bringing his action within the jurisdiction of the justice court.”

So that, it would appear in this case also the Supreme Court had before it for consideration the pleadings of the justice court, where the cause originated.

There is a conflict of views amongst various Courts of Civil Appeals upon the question whether or not a petition in the county court upon a moneyed demand within the jurisdiction of that court, seeking in addition a foreclosure of a lien upon personal property, the value of which is not stated, is sufficient to show affirmatively jurisdiction in that court. That question is not before us, and we are not deciding it. Under the facts certified, it is clear the pleadings in neither the justice court nor the county cpurt are shown. Under the law they are permitted to be orally stated, and presumptively they were so stated, and neither court is shown wrongfully to have assumed jurisdiction of the case. Silberberg v. Trilling, 82 Tex. 523, 18 S. W. 591.

Third. From what we have already said it will appear the honorable Court of Civil Appeals was not authorized to consider the evidence or the judgment in the justice court upon the issue of amount in controversy. That issue is determined wholly by the pleadings. The judgment of the justice of the peace, if that matter were properly up for review, might be held to be erroneous as beyond his jurisdiction, but would prove nothing of the pleadings. It could not be presumed to be supported by pleadings, for that presumption of law is one of regularity and not irregularity. The entry of such judgment by a justice of the peace could not be regular in any event and therefore there can be no presumption to support it. This question concludes:

“And such transcript (from the justice court) fails to disclose that any value of said property was alleged in the pleadings, does fundamental error appear on the face of the record?”

Since, as we have shown, the transcript from the justice court did not contain the pleadings in the justice court, upon which alone jurisdiction depended, it of course follows that no fundamental error appeared on the face of the record.

What we have said makes it unnecessary to answer the fourth question.

It is true generally that upon appeal to the Court of Civil Appeals the jurisdiction of the trial court must affirmatively appear from the record. When the proceeding originates in the trial court, it must appear from the pleadings, which are required to be contained in the transcript. Where it originates in the justice court, it must appear as an appeal; when in the absence of a showing to the contrary in the record, it will be presumed the justice court had jurisdiction. With this presumption obtaining, the county court is shown to have jurisdiction, at least prima facie. It is like a pleading showing jurisdiction; it is good until attacked. Until the vice appears jurisdiction attaches. Thus the jurisdiction of the county court affirmatively appears. To hold otherwise would be to require the transcript to that court to contain matter not contemplated by the practice statutes applicable.

We therefore recommended that the questions certified be answered as herein shown.

GREENWOOD and PIERSON, JJ.

Opinion of the Commission of Appeals answering-certified questions adopted and ordered certified to the Court of Civil Appeals. 
      @x?For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     
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