Missouri-Kan.-Texas Ry. Co. v. Wilson , 17 S.W.2d 841 ( 1929 )

This suit originated in the justice's court, and was filed by appellee for damages for negligence of the railroad company in killing his turkeys. The aggregate damages claimed amounted to $190, or approximately $5 per head for the turkeys killed. He testified to two distinct claims; one for 16 turkeys killed on or about August 17, 1927; and the other for 23 turkeys killed on or about September 4, 1927. The killings occurred, according to the evidence, at different places on the railway track. Plaintiff recovered in the justice's court a judgment for the full amount of his claims. Appellant prosecuted an appeal to the county court. Just before the case was submitted to the jury in the county court, the appellee took a nonsuit as to one of his claims amounting to $110, thus reducing the amount in controversy to less than $100. The court submitted to the jury only the issue as to the turkeys killed on August 17, 1927. In response to special interrogatories, the jury found that 11 turkeys, of the value of $3 each, were killed on that occasion, and judgment was rendered in favor of the appellee for that amount.

Appellee suggests that this court has no jurisdiction of this appeal, because, after the abandonment of one of his claims in the county court before the issues were submitted to the jury, the amount in controversy was reduced to less than $100, and, under the provisions of article 1819. Revised Civil Statutes 1925, the judgment of the county court was final. We think that contention is correct, and that the appeal should be dismissed. Article 2182, Rev.Civ.Stat. 1925; American National Ins. Co. v. Murillo (Tex.Civ.App.) 11 S.W.2d 849; Bishop v. Lawson,47 Tex. Civ. App. 646, 105 S.W. 1008.

The appeal is dismissed.