
    Seitz Brothers v. H. McKenzie.
    No. 747.
    1. Jurisdiction of Amount Pleaded in Beconvention— Practice on Appeal.—Where defendants in the County Court plead in reconvention an amount beyond the jurisdiction of the court, they can not, on appeal, avail themselves of errors of the trial court in the admission and rejection of evidence, and in charges given, relating to such plea.
    2. Same—Effect of Judgment Below in Such Case.—As the court below had no jurisdiction of the defendants’ plea in reconvention, the verdict and judgment can not preclude their right to bring an independent action thereon.
    3. Practice—Harmless Error.—Where those items in plaintiff’s account which are well pleaded, and as to which his proof is undisputed, exceed the amount allowed him by the verdict and judgment, error of the court as to other items of the account is harmless as to the defendant.
    Appeal from the County Court of Nolan.
    Tried below before Hon. J. F. Eidson.
    
      Bag land & Beall, for appellants.
    
      Thurmond & Yantis, for appellee.
   HEAD, Associate Justice.

Appellee sued appellants in the County •Court of Nolan County, for one month’s wages at 840, and six months wages at 850 per month; also, for 865, the alleged value of one wagon, and 812 the alleged value of seven head of sheep sold by him to appellants; also, upon an account for 8197.95 for certain supplies alleged to have been furnished by him for the use of appellants in taking care of a flock of sheep.

Appellants pleaded in reconvention damages alleged to have been sustained by them by reason of the negligence of appellee in the performance of his duties; also, on an account for 8445.20 for various items of money and merchandise alleged to have been paid and furnished by them to appellee, and prayed judgment for the balance, after deducting any amount that might be found due to appellee, which they alleged did not exceed the sum of $405, leaving a balance due them, for which they prayed judgment, amounting to about $2800. Judgment was rendered in favor of appellee, upon the verdict of a jury, for $233.31.

Delivered April 6, 1893.

Several errors are presented by appellants relating to the action of the-court in the admission and rejection of evidence, and to charges given the jury having relation to their plea in reconvention; but inasmuch as the County Court clearly had no jurisdiction of the amount in controversy as claimed in said plea, we are of opinion that no error committed by it in reference thereto can avail appellants, and the case must be considered alone with reference to the petition of appellee and the general denial filed by appellants. When so considered, appellants assign as-error the action of the court below in overruling their special exception to some of the items in the account for $197.95 filed by appellee; but inasmuch as the evidence was undisputed that appellee served appellants-one month at an agreed price of $40, and six months, lacking three days, at an agreed price of $50 per month, and that appellee sold to appellants-a wagon at an agreed price of $65, and only recovered judgment for a sum considerably less than that thus shown to be due him, the ruling of' the court so complained of can not be material, even though erroneous.

As the court below had no jurisdiction of appellants’ plea in reconvention, the verdict and judgment can not, of course, preclude their right to bring an independent suit thereon; and as to what effect the judgment rendered in this case will have upon the balance of appellee’s claim, should he see proper to present it again, it is not necessary for us to decide, as he makes no complaint of the judgment as rendered.

We are of opinion that the judgment of the court below should in all' things be affirmed.

Affirmed.

A motion for rehearing having been granted, the judgment was again affirmed on oral opinion, September 20, 1893.  