
    Ellett v. Powers.
    Where the petition alleges the property in controversy to be of the value of one hundred dollars, and it does not appear that the allegation is made merely for the purpose of giving the court jurisdiction, if no objection be made to the jurisdiction of the court before verdict the ease will not be dismissed for want of jurisdiction, although the jury value the property at less than one hundred dollars. (Note 22.)
    Note 22. — The suit may be dismissed for want of jurisdiction when the plaintiff seeks improperly to bring the case within the jurisdiction of the court. (Gouhenant v. Anderson, 20* T., 459.)
    Error from Red River. The defendant in error brought his action in the nature of trover to recover of tiie plaintiff in error damages for the conversion to his own use of a horse (the property of the plaintiff) alleged to be of the value of one hundred and fifty dollars, the plaintiff laying his damages at two-hundred dollars. The defendant answered by a general demurrer, a general denial, and a special plea of property in himself. On the trial the witnesses estimated the value of the horse variously at from fifty to sixty dollars. The jury returned a verdict for the plaintiff for fifty dollars, for which the court gave-judgment. The defendant brought a writ of error, and assigned as error that the subject-matter of the suit was not within the jurisdiction of the court.
    
      Morrill and Dickson, for plaintiff in error.
    The question is as to the jurisdiction of the court. There is no allegation in. the petition that Ellett committed any violence or damage, and the only matter in controversy was the horse or his value, the measure of damages being the value of the horse.
    There can be no supposition that Powers was mistaken in the value of the horse. Hone of the witnesses estimated him at more than sixty dollars, and the verdict of the jury settled the value at fifty dollars. (2 Tex. R., 192; Id., 460.)
    The Constitution confers jurisdiction on the District Court only where the-matter in controversy shall be valued at or amount to one hundred dollars. This of course is to be understood not a valuation made by the party plaintiff.
    
      J. T. Mills and W. Trimble, for defendant in error.
   WheeleR, J.

There is, perhaps, more reason to doubt whether the court had jurisdiction in this case than in other similar cases which have been determined by this court. It would be exceedingly difficult, however, to distinguish the present from those other cases in which the jurisdiction of the court has been maintained. (Tarbox v. Kennon, 3 Tex. R.; Graham v. Roder, 4 Id ; Sherwood v. Donthit, 6 Id.)

The question of jurisdiction was not raised in the District Court, and we are not ptepared to say that the plaintiff in stating his case improperly sought to-give jurisdiction where it did not rightfully belong. We are of opinion, therefore, that the objection now taken to the jurisdiction of the court ought not to prevail and that the judgment be affirmed.

Judgment affirmed.  