
    CHILDRESS OIL CO. v. WOOD.
    (No. 2861.)
    (Supreme Court of Texas.
    April 20, 1921.)
    1. Justices of the peace &wkey;>l4l(2) — Jurisdiction on appeal dependent on jurisdiction of trial court.
    The jurisdiction of the county court in cases appealed from justice court depends absolutely on the jurisdiction of the latter; for, while the case is tried de novo in the county court, its power is not original, and it cannot have jurisdiction where the justice court had none.
    2. Justices of the peace <&wkey;>l4i (4)— Abandonment of-part of claim on appeal did not give appellate jurisdiction.
    A cause of action in the justice court being not only for debt, but for foreclosure of a lien on personal property, its jurisdiction was dependent upon such property’s value, where its value admittedly exceeded the court’s lawful jurisdiction, the county court was without jurisdiction on appeal, and plaintiff’s abandonment of the lien in the county court did not give such court jurisdiction.
    3. Justices of the peace &wkey;>44(2) — No jurisdiction where lien is asserted on property of value exceeding $200.
    Where plaintiff sought the collection of a debt and asserted a lien and sought foreclosure on personal property of an agreed value exceeding $200, asking foreclosure of lien against all of the property, and not merely so much as to pay the debt, the justice court was without jurisdiction.
    Certified Questions frpm Court of Civil Appeals of Second Supreme Judicial District.
    Suit by O. E. Wood against the Childress Oil Company in the Justice Court. Judgment for plaintiff. Defendant appealed to county court, where plaintiff attempted to dismiss as to the lien and its foreclosure, and prosecuted the suit only for debt and attorney’s fee. Judgment was rendered for the plaintiff which was reversed upon defendant’s appeal to the Court of Civil Appeals, and the matter was certified to Supreme Court.
    Judgment of. Court of Civil Appeals affirmed.
    Jos. H. Aynesworth, of Wichita Falls, for appellant.
    Ed Yarbrough, of Electra, and E. W. Napier, of Wichita Falls, for appellee.
   PHILLIPS, C. J.

The suit was one by O. E. Wood against the Childress Oil Company in the Justice Court to recover on a claim of $178.50 for labor performed for the defendant and an additional statutory attorney’s fee of $20, and to foreclose a laborer’s lien upon machinery, tools and material belonging to the defendant. The value of the property upon which foreclosure of the lien was sought was not alleged by the plaintiff, but the defendant pleaded that its Value exceeded $200 and that therefore the Justice Court was without jurisdiction. The plaintiff prevailed in the Justice Court, and on the defendant’s appeal to the County Court it was agreed between the parties that the value of the property upon which the lien was asserted in the Justice Court exceeded $200. In the County Court the plaintiff attempted to dismiss so much of his ¿etion as pertained to the lien and its foreclosure and prosecuted his suit only for the debt and attorney’s fee. Judgment was there rendered only for the debt and attorney’s fee.

The Honorable Court of Civil Appeals reversed this judgment and directed the dismissal of the ease, holding that the jurisdiction of the Justice Court was determined by the value of the property upon which the lien was asserted, and that since the Justice Court had no jurisdiction the' County Court had none.

The question certified is whether its action was correct.

We answer that it was. The jurisdiction of the County Court in cases appealed from the Justice Court is dependent absolutely upon the jurisdiction of the Justice Court. If the Justice Court is without jurisdiction there can be no jurisdiction in the County Court. While the case is tried de novo in the County Court, its power is not original. The case is there only in virtue of the appeal. With this true, its power to determine it on the appeal cannot exist if the original tribunal had no power to consider it.

The jurisdiction of the Justice Court is necessarily determined by the cause of action, there asserted, and not merely by a part of the cause of action. If as so determined it is without jurisdiction, the abandonment of a part of the cause of action in the County Court cannot create jurisdiction in the latter.

The cause of action in the Justice Court, here, being not simply for debt but for the foreclosure of a lien on personal property, as well, the jurisdiction of the court was necessarily dependent upon the value' of the .property thus brought into controversy and sought to be subjected to judgment The value of the property so brought into the suit admittedly exceeded the amount of the court’s lawful jurisdiction. The abandonment of the lien in the County Court did not, therefore, save the County Court’s jurisdiction.

The question is directly ruled by Cotulla v. Goggan & Bros., 77 Tex. 32, 13 S. W. 742. There, the suit in the Justice Court was for a debt within its jurisdiction and to foreclose a mortgage lien upon property whose value exceeded the sum of $200. On the appeal to the District Court the lien was abandoned, which it was contended had the effect of saving" the District Court’s jurisdiction. This court held that the abandonment of the lien did not cure the want of jurisdiction in the District Court.

It has been held by Courts of Civil Appeals, and we think correctly, that In a suit to foreclose a statutory landlord’s lien, the court’s jurisdiction is determined by the amount of the debt and not the value of the property upon which the lien exists, since the statute contemplates a foreclosure upon only so much of the property as is sufficient to satisfy the debt. Dawson v. Lynch, 9 Tex. Civ. App. 582, 29 S. W. 1128; Dazey v. Pennington, 10 Tex. Civ. App. 326, 31 S. W. 312; Irion v. Bexar County, 26 Tex. Civ. App. 527, 63 S. W. 550; Manire v. Wilkinson, 136 S. W. 1153. And in Allen v. Glover, 27 Tex. Civ. App. 483, 65 S. W. 379, this was held true of a suit to foreclose a statutory laborer’s lien upon “only so much of the property as was necessary to satisfy the plaintiff’s claim-.” The statute conferring the laborer’s lien does not in terms, as is contemplated by the statutes dealing with the landlord’s lien, direct a foreclosure upon only sufficient property to satisfy the debt; but it is possible that by analogy this would be permitted in the foreclosure of such a lien. We see no reason why it should not be if such be the plaintiff’s prayer. Accordingly, had the plaintiff here sought foreclosure of his laborer’s lien upon only enough of the defendant’s property to satisfy his debt, a different question might be presented. Such however was not his suit. In the Justice Court he asserted a lien and sought a foreclosure on “all of the machinery, tools and material of the defendant” ; the value of which, as agreed in the County Court, exceeded $200. Having sought a foreclosure upon all the property, instead of merely so much of it as was sufficient to pay his debt, and with that value exceeding $200 the Justice Court was necessarily without jurisdiction of the suit

We do not determine the question as it would have arisen had a foreclosure of the laborer’s lien been sought only upon enough property to satisfy the debt, since the case here does not present it. We refer to it however in order to avoid confusion.

The case of Texas & New Orleans Railroad Co. v. Rucker, 38 Tex. Civ. App. 591, 88 S. W. 815, decided by the Court of Civil Appeals for the First District, whose decision was later approved by this court (99 Tex. 125, 87 S. W. 818) was one for the foreclosure of a statutory carrier’s lien. It was {here held that the value of the property upon which the foreclosure was sought determined the court’s jurisdiction. It is to be noted however that, there, foreclosure was prayed for upon all of the property and not only upon so much of it as was necessary to satisfy the plaintiff’s demand. The value of all the property exceeded the amount within the court’s lawful jutis- - diction, and the decision is. of course correct, i 
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