
    COMMERCIAL INV. TRUST, Inc., v. SMART et al. 
    
    No. 1497—6235.
    Commission of Appeals of Texas, Section B.
    Feb. 7, 1934.
    John A. Coffee, of Hereford, for appellant.
    W. H. Russell, of Hereford, for appellees.
    
      
      Opinion withdrawn on rehearing, see 69 S.W.(2d) 35.
    
   RYAN, Judge.

The Honorable Court of Civil Appeals for the Seventh supreme judicial district certifies the following statement and question, viz.:

“This suit was instituted in- the County Court of Deaf Smith County, by the Commercial Investment Trust, Inc.,.against the defendants W. S. Smart and his wife Mrs. W. S. Smart, on a note executed by them to the-Panhandle Barber Supply Company, dated July 7, 1939, for the principal sum of $163.00,. bearing 10% interest and providing for 15% attorneys’ fees. The note was payable in monthly installments of $10.00 each and one installment of that amount had been paid. The defendants thereafter defaulted and under the accelerating clause plaintiff declared the balance of the principal, with the unpaid interest and attorneys’ fees,'due.
“The plaintiff alleged that contemporaneously with the execution of the note the defendants had made and delivered a chattel1 mortgage on certain personal property fully described, of the reasonable value of $175.00, to secure the payment of the note. That on July 21, 1930, the note was for a valuable-consideration assigned to it and that plaintiff is now the legal owner and holder thereof, and sought judgment for its debt and a foreclosure of the chattel mortgage lien.
“The defendants pleaded that they were entitled to credit for certain specified payments on the note which they claim discharged and satisfied the indebtedness evidenced by the note sued on and prayed that plaintiff recover nothing against them by reason thereof and that the chattel mortgage lien, upon the property be cancelled.
“By way of cross action the defendant Mrs. W. S. Smart, joined' pro forma by her husband, sought to recover, from the plaintiff the sum of $950.00 for an alleged tort growing out of the same transaction, committed by the plaintiff and its agents on the said Mrs. Smart, alleging the facts in detail,, on which she based her cross action and asked for actual damages in the sum of $750.00 and exemplary damages in the sum of $200.00,
“In response to special1 issues submitted by the Court, the jury found that the defendants were due the plaintiff on its note a balance of $40.78; that the defendant Mrs. W. S. Smart suffered actual damages by reason of the tort alleged, in the sum of $400.00, and exemplary damages in the sum of $100.00. On these findings judgment was rendered that plaintiff recover nothing against the defendant Mrs. W. S. Smart; that it have judgment against W. S. Smart for $40.78; that plaintiff’s note and chattel mortgage be can-celled and held for naught; that the defendants have judgment against the plaintiff for the sum of $500.00, credited said amount with $40.78, leaving a net judgment in favor of the defendants in the sum of $459.22, with costs and interest, from which judgment an appeal was prosecuted by the plaintiff to this Court.
“On March 16, 1932 this Court held that the amount put in controversy by the cross action of the defendants was in excess of $1,000.00 and that the County Court was without jurisdiction to entertain such cross action and reversed the judgment and remanded the case.
“On April 13th thereafter appellees’ mo-, tion for rehearing was overruled in a written opinion.
“By permission of the Court the appellees filed their second motion for rehearing, insisting that there is an irreconcilable conflict in the holdings in Knoohuizen et al. v. Nicholl (Tex. Civ. App.) 257 S. W. 972, followed in Commercial Credit Co. et al. v. Moore (Tex. Civ. App.) 288 S. W. 508, and the holdings in Commercial Credit Co. v. Moore (Tex. Civ. App.) 270 S. W. 582 and the instant case.
“On account of the alleged conflict in the holdings in the eases cited supra, we deem it advisable to certify to Your Honorable Court for decision the following question:
“Did the plea of payment and the request for cancellation of the mortgage, together with the $950.00 damages appellee sought to recover, make her cross action an amount exceeding the jurisdiction of the County Court?”

Opinion.

First. The county court did not have jurisdiction of the suit as originally filed by the Commercial Investment Trust, Inc., plaintiff, against Smart and wife, because the amount sued for as well as the value of the personal property on which foreclosure was sought, was under $200. Article 1949, Rev. Stat. 1925; Const. art. 5, § 16.

Jurisdiction may, however, be obtained in such a case if plea in reconvention for an amount within the court’s jurisdiction is asserted, and it is then a matter of no moment, as said by Chief Justice Gaines in Blair v. Blanton, 93 Tex. 348, 55 S. W. 321, whether the court would or would not have had jurisdiction over the original suit. The case then became the same in legal effect, so far as jurisdiction was concerned, as if the defendants ¡had sued upon their counterclaim and the plaintiff had pleaded its cause of action in reconvention.

The plea in reconvention occupies the same attitude as an independent suit (Harris v. Schlinke, 95 Tex. 88, 65 S. W. 172) and is essentially a separate action (Tynberg v. Cohn, 76 Tex. 417, 13 S. W. 315).

The cross-bill must therefore be tested by its own averments and must be treated as a petition seeking recovery against plaintiff; it is not defensive, even in part, because the county court was without jurisdiction on the plaintiff’s cause of action, of itself.

As stated by the Court of Civil Appeals, the cross-action sought a recovery, not only for damages in the sum. of $950 for an alleged tort, but also for cancellation of the note sued on and of the chattel mortgage given to secure such note. The cross-action made the defendants below, the actors In a proceeding to cancel the note and chattel mortgage, and to that extent the amount thereof was directly involved, and, cancellation thereof having been affirmatively prayed for, became a part of the amount in controversy, which added to the claim for damages, exceeded the sum of $1,000, and was not within the jurisdiction of the county court. ■

Second. It would therefore follow that the county court is without jurisdiction of plaintiff’s cause of action because the matter in controversy alleged by it is below the value of $200; likewise the county court is without jurisdiction of defendants’ cause of action beeause that, as alleged by them, is above the sum of $1,000, maximum jurisdiction of said court. Articles 1949 and 1950, Rev. Stat. 1925. . ’

Third. While the Supreme Court in answering certified questions is confined to those submitted [Slater v. Ellis County Levee Imp. Dist., 120 Tex. 272, 36 S.W.(2d) 1014], there may be other questions in the case which must be determined, before the question as certified can be answered [State v. Callaghan, 91 Tex. 313, 43 S. W. 12]. Whether the trial court had jurisdiction originally or not is an important question affecting the defendants’ plea of payment, coil verting it from a defense to an affirmative cross-action and thus determining the form of our answer to the singlé question certified.

Upon the postulate that the county court had no jurisdiction in the first instance, based upon the facts stated in the certificate, we have concluded as stated above that the trial court being without jurisdiction of the case, at all, a literal answer to the single question propounded, is “Yes,” and we recommend that it be so answered.

CURETON, Chief Justice.

. The opinion of the Commission of Appeals answering the certified question is adopted and ordered certified.  