It is very clear that plaintiffs by suing to recover their damages in the sum of $1,000, with interest from March 1, 1924, to the date of trial and judgment, thereby placed in controversy an amount beyond the jurisdiction of the county court at law. McDaniel v. National, etc.,112 Tex. 54, 244 S.W. 135; Pecos N. T. Ry. v. Rayzor, 106 Tex. 544,172 S.W. 1103; International G. N. Ry. v. Lyon, 112 Tex. 30,243 S.W. 973; Holman v. Ward (Tex.Com.App.) 288 S.W. 148.
The court, therefore, erred in undertaking to dispose of this case upon its merits. Its error in so doing is fundamental and requires correction by this court, though not called to our attention in any way. Curtis v. Ford, 78 Tex. 262, 14 S.W. 614, 10 L.R.A. 529; Ware v. Clark,58 Tex. Civ. App. 356, 125 S.W. 618.
I do not concur in the broad statement in the majority opinion that, since the trial court was without jurisdiction, this court is likewise without jurisdiction.
The statement has often been made that, if the court a quo had no jurisdiction, the appellate court can have none. See cases cited 1 Michie, Digest, 362. But this statement is too broad, the true rule being stated by Justice Wheeler in Hearn v. Cutberth, 10 Tex. 216, as follows:
"But it is insisted for the appellee that the appeal to this court should be dismissed for the want of jurisdiction in the court a quo, and we are referred to our opinions, in which it has been held that, where the court from which the appeal was taken has not jurisdiction, the appellate court cannot acquire it by the appeal. This is true, in the sense in which that proposition was asserted and applied in the case referred to; that is, where the court in which suit was brought had not jurisdiction, another court, though entitled to take original jurisdiction of the case, cannot acquire it by appeal for the purpose of an adjudication of the merits of the case. An appeal cannot confer on the appellate court a jurisdiction which the court a quo did not possess (Baker v. Chisholm, 3 Tex. 158; [Aulanier v. Governor] 1 Tex. 668); that is, jurisdiction to hear and determine the case upon the merits. But the appellate court may entertain the appeal for the purpose of reversing the judgment of the court below, where it has exceeded its jurisdiction, and, without undertaking to adjudicate the merits of the case, may render such judgment as the court below ought to have rendered; that is, to reverse and dismiss where the court has improperly taken jurisdiction and where it has properly dismissed the case for the want of jurisdiction, to affirm the judgment. Swigley v. Dickson, 2 Tex. 192, 196."
See, also, Ware v. Clark, 58 Tex. Civ. App. 356, 125 S.W. 618.
The writer, therefore, concurs in this court assuming jurisdiction of this appeal for the purpose of reversing the judgment upon the merits which the trial court erroneously rendered.
I do not concur in the peremptory direction to the trial court to dismiss the case. If it were proper to peremptorily direct such dismissal, then this court should here render judgment dismissing the action. There is no occasion to remand to the county court at law simply for the purpose of dismissing the suit. This court has full power to dismiss, if such order is proper. Article 1856, R.S.
For the reason to be now stated, I do not think such order would be proper at this *Page 970 time. The plaintiff has the right to waive his demand for interest and omit to sue for same. Fort Worth R. G. Ry. v. Mathews, 108 Tex. 228,191 S.W. 559; International G. N. Ry. v. Lyon, 112 Tex. 30,243 S.W. 973.
The demand for interest is severable, and admits of segregation from the item of $1,000 damage to plaintiffs' premises, and may therefore be omitted from the suit and bring the action within the jurisdiction of the county court at law. Fort Worth R. G. Ry. v. Mathews, supra; Hooper Lbr. Co. v. Texas Fixture Co., 111 Tex. 168, 230 S.W. 141; Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S.W. 824, 23 S.W. 91.
The right to amend so as to cure a defect in the jurisdiction of the court is well settled. McDannell Co. v. Cherry, 64 Tex. 177; Tarkinton v. Broussard, 51 Tex. 550; Greer v. Richardson Drug Co.,1 Tex. Civ. App. 634, 20 S.W. 1127; Miller v. Newbauer (Tex.Civ.App.)61 S.W. 974.
Cases have been remanded to allow a party to make such amendment. Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S.W. 824, on rehearing,3 Tex. Civ. App. 498, 23 S.W. 91; Ward v. Lathrop, 11 Tex. 287; McDannell Co. v. Cherry, supra; Braggins v. Holekamp (Tex.Civ.App.) 68 S.W. 57.
The last four cited cases, it seems to me, are decisive of the view that the case should be remanded so as to allow plaintiffs an opportunity to amend and bring the suit within the jurisdiction of the county court at law.
Of course, if no amendment can be properly made so as to cure the jurisdictional defect here present, then we should dismiss the suit. Ware v. Clark, 58 Tex. Civ. App. 356, 125 S.W. 618. But, as shown above, the plaintiffs, if they see fit, may amend by omitting to sue for interest, and thus bring the action within the jurisdiction of the trial court, and the case should be remanded to afford them that opportunity.
Again, the original petition in this case is not in the transcript. It may be that such petition seeks to recover an amount within the jurisdiction of the trial court. If so, the amended petition did not necessarily oust the jurisdiction of the county court at law (Isbell v. Kenyon-Warner, etc., 113 Tex. 528, 261 S.W. 762; Fort Worth D.C. Ry. v. Underwood, 100 Tex. 285, 99 S.W. 92, 123 Am. St. Rep. 806), and in such case the proper order Is to remand rather than render judgment dismissing the suit (International G. N. Ry. v. Flory [Tex. Civ. App.] 118 S.W. 1116).
I, therefore, think the case should be reversed and remanded, with instructions to dismiss, unless the original petition states a cause of action for an amount within the jurisdiction of the county court at law, and, if not, to dismiss, unless the plaintiffs, by amendment, shall reduce their demand by omitting to sue for interest.
It would not be permissible for them to fictitiously reduce the damages of $1,000 to the premises. Hooper Lumber Co. v. Texas Fixture Co., supra; Burke v. Adoue, 3 Tex. Civ. App. 494, 22 S.W. 824, 23 S.W. 91.