
    TEXAS CO. v. HENDERSON.
    No. 4128.
    Court of Civil Appeals of Texas. El Paso, Texas.
    Sept. 18, 1941.
    Mae M. Ament, of Alpine, for appellant.
    A. E. Owens, of Alpine, for appellee.
   WALTHALL, Justice.

Appellant, the Texas Company, filed this case as plaintiff in the Justice of the Peace Court in Brewster County. The case was there tried to judgment, and from that court the case was appealed to the County Court, where it was again tried to final judgment. From the judgment in the County Court this appeal was prosecuted.

Appellant’s suit was upon a verified itemized account against the appellee for $106.-58. Appellee was duly cited in the Justice Court and filed a written answer consisting of a general demurrer and general denial. In the County Court appellee for the first time set up a counterclaim for the sum of $140.05, being an alleged refund due him of one cent per gallon on 14,005 gallons of gasoline. To the counterclaim the appellant filed a special exception which was overruled and exception preserved in the record.

There is no statement of facts and ap-pellee has filed no brief in this court. The judgment of the trial court recites as a fact that the account of appellant was admitted by the appellee, and that he owed the same.

Under Art. 958, R.S., the County Court was without jurisdiction to try the counterclaim, and the exception of appellant should have been sustained and the counterclaim dismissed. The statute requires no construction, but such has been the construction in a number of cases. We cite the following: Jund v. Stute, 49 Tex.Civ. App. 510, 108 S.W. 763; Mercer v. Gray, Tex.Civ.App., 109 S.W.2d 1107; Racugno v. Hanovia Chemical Co., Tex.Civ.App., 110 S.W.2d 249.

The judgment of the trial court is reversed and here rendered in favor of The Texas Company, appellant, for its debt and costs, and the judgment in favor of the appellee is reversed and remanded with instructions that the counterclaim be dismissed without prejudice.  