
    SHAW & ROGERS v. DOCKERY.
    
    (Nos. 665-4176.)
    (Commission of Appeals of Texas, Section A.
    May 27, 1925.)
    Justices of the peace <&wkey;>14i (4)_Accumulation of damages pending action in county court held not to oust it of appellate jurisdiction, where judgment .appealed from not in excess of justice court’s jurisdiction.
    Where at time defendant’s cross-action was lodged in justice court, amount of damages which had accrued was within jurisdiction of that court, and judgment was not in excess of its jurisdiction, held that county court had appellate jurisdiction thereof, and though damages accumulated pending action in county court. .. .
    ' Error to Court of Civil Appeals of Tenth Supreme Judicial District.
    
      Action by T. B. Dockery against Sbaw & Rogers. Prom a judgment of the Court of Civil Appeals (260 S. W. 909), reversing and remanding judgment for defendants ón their cross-action in the county court, on appeal from justice of the peace, defendants bring error.
    Reversed, and judgment of the county court affirmed.
    Allan V. McDonnell, of Waco, for plaintiff in error.
    Johnston & Hughes, of Waco, for defendant in error.
    
      
      Rehearing denied June 27, 1925.
    
   BISHOP, J.

This case was filed by plaintiff, T. B. Dockery, in the justi'ce court April 7, 1922, for $.60 rent due by defendants, Shaw & Rogers, for a business house and to foreclose a lien on certain restaurant fixtures and equipment. Defendants by cross-action sought damages in the sum of $199, for detention of the property taken into his possession by the plaintiff, and on which he sought to foreclose a lien. On trial in the justice court, plaintiff recovered judgment for $45 and foreclosure of lien, and defendants recovered judgment against plaintiff on their cross-action for $199. The case was by plaintiff appealed to the county court, resulting in a like judgment. " The Court of Civil Appeals reversed the judgment of the county court, holding that court without jurisdiction of the cross-action for the reason that, at the time of the trial, the amount of damages shown by the pleadings exceeded the jurisdiction of that court.

The trial was had in the justice court May 13, 1922, and in the county court February 2, 1923. In both courts the pleadings were oral. The transcript from the justice court does not show what the pleadings there were, except the statement, “5 — 3—22, defendants plead cross-action for $199.00.” In the county court the oral pleadings were taken by a stenographer and shown in the transcript. Defendants there alleged that their damages by reason of the wrongful seizdre of their property was at the time of their oral pleadings in the county court in excess of $199, but that they were suing “for $199 as an offset, and for no more, because this suit originated in the justice court, and they are unable to sue for their actual damages for the wrongful detention of the property at this time.” They also alleged by trial amendment that the reasonable rental value of the property was $5 per day, and that the property had been unlawfully withheld from them from March until the time of the trial in the county court.

It appears from the pleadings in the county court that, at the time the cross-action was lodged-in the justice court on May 3, 1922, the amount of damages at $5 per day was within the jurisdiction of that court. The judgment there awarded on the cross-action for $199 was not in excess of its jurisdiction. The county court therefore had appellate jurisdiction at the time the appeal was perfected. The mere fact that damages accumulated pending the action in the county court did not oust that court of this appellate jurisdiction. The court could try and determine the issue presented by the cross-action, but could render judgment for no greater sum,than the jurisdictional limit of the court in which the defendants saw fit to sue. In this case this has been done. Here no attempt was made to confer jurisdiction on the justice court by asking judgment for a sum less than defendants were entitled to recover under their pleadings. At the time the cross-action was asserted in the justice court it had jurisdiction of the amount Of damages which had accrued by reason of the detention of the property as shown by the pleadings. In the case of Ft. Worth & Denver City Ry. Co. v. Underwood, 100 Tex. 284, 99 S. W. 92, 123 Am. St. Rep. 806, the court aptly states the law controlling here as follows:

“The cause of action asserted was of such a nature that damages might accumulate pending the action, which is true of many actions, as. for instance, those brought for the use of property detained, and the like; but the accrual of further damages in cases of that character , does not take away the power of the court to give judgment for an amount claimed which is within its jurisdictional limits. The plaintiff in such cases, with proper pleadings, may recover the entire damage which he has suffered up to the trial, but this right may be restricted by the law limiting the jurisdiction of the court in which he has seen fit to sue. Having brought his action for an amount within the jurisdiction, he is entitled to such judgment as the court has power to render.”

In the case of Pecos & North Texas Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294, cited by the Court of Civil Appeals as sustaining its holding, as in this case, the pleadings in the justice court were oral and not shown by the transcript' filed in the county court on appeal. Otherwise the two eases are not similar. There it appeared from an amended pleading filed in the county court that the justice court was-without jurisdiction to hear and determine the amount in controversy, and for this reason the Supreme Court, in answering the question certified, suggested that the judgment should be reversed, and the cause dismissed.

We recommend that the judgment of the Court of Civil Appeals be reversed, and that of the county court affirmed.

CURETON, C. J.

The judgment recommended in the report of the Commission of Appeals is adopted, and will be entered as the judgment of the Supreme Court.  