
    McKNEELY v. BEATTY.
    (Court of Civil Appeals of Texas. Galveston.
    Nov. 20, 1913.)
    1. Justices op the Peace (§ 174) — Appeal-New Trial in Appellate Court — New Cause op Action.
    On the trial in the county court of an action appealed from justice court, the county court cannot entertain a cause of action on a demand in excess of that of which the justice court had jurisdiction, and hence where, in an action to recover $152, plaintiff on appeal amended the petition so as to seek a recovery of $356, in addition to that sought in the justice court, the allegations to sustain this additional recovery should have been stricken.
    [Ed. Note. — For other cases, see Justices of the Peace, Gent. Dig. §§ 665-693; Dec. Dig. § 174.]
    2. Appeal and Error (§ 1042) — Harmless Error — Ruling on Motion to Strike.
    Where, though the county court on an appeal from justice court denied a motion to strike out a cause.of action not set up in the justice court, when made, the judgment recited that it was sustained, thus indicating that the new cause of action was not considered, the error was cured..
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 4110-4114; Dec. Dig. § 1042.]
    Appeal from Galveston County Court.
    Action by Henry Beatty against G. E. Me-Kneely. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    J. V. Meek, of Houston, for appellant. Geo. G. Clougb, of Galveston, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep’r Indexes
    
   McMEANS, J.

Henry Beatty brought suit against O. E. McKneely in tbe justice court of Galveston county to recover $152, alleged to be double tbe amount of usurious interest be bad paid defendant, and on a trial in that court recovered a judgment for $144. Defendant prosecuted an appeal from tbis judgment to tbe county court, where tbe plaintiff amended bis pleadings, and therein, in addition to tbe claim asserted in tbe justice court, claimed actual damages in tbe. sum of $100, and exemplary damages in the sum of $250. Tbe case was tried before tbe court without a jury on tbe 4th day of March, 1913, and resulted in a judgment for plaintiff for tbe sum of $136, from which the defendant has appealed.

On tbe day tbe case was tried tbe defendant filed a motion to strike out and bold for naught tbe allegations of plaintiff’s amended petition praying for $100 as actual and $250 exemplary damages in addition to plaintiff’s original demand. This motion appears, by an order entered upon tbe minutes on March 4, 1913, to have been overruled by tbe court, and tbis action of tbe court is made tbe basis of appellant’s only assignment of error. It has been so frequently and consistently held that tbe county court, in a case to be tried de novo on appeal from tbe justice court, has no jurisdiction to entertain a cause of action on a demand in excess of that of which the justice court bad jurisdiction, that we are at a loss to understand why tbe new cause of action was pleaded, and that the court did not sustain tbe motion to strike it out when first presented is inexplicable. However, while it appears from tbe order entered of record that the court refused to sustain the motion, the judgment rendered in favor of plaintiff upon tbe trial recites that tbe motion was sustained. We take it from tbis that tbe court did not consider tbe new cause of action for actual and exemplary damages, and that tbe sustaining of tbe motion as shown by tbe judgment, after overruling it as shown by tbe order, cures tbe error here complained of. Tbe judgment is affirmed.

Affirmed  