The contention of appellant, predicated upon his assignment of error, that the county court erred in awarding and apportioning against him, as done, the costs which were incurred by him in appealing the case from the justice court, must, we conclude, be overruled in all matters.
The record here admits that the justice court did not have original jurisdiction over the subject-matter because the admitted value of the mortgaged property exceeded $200, and that such lack of jurisdiction affirmatively appeared in the face of the justice's judgment. This being so, then there was no issue of fact respecting jurisdiction to be passed on by the county court in order to reach the conclusion that it had no jurisdiction. Therefore, as the judgment of the justice court was, as affirmatively shown on its face, void, as a matter of law, for want of jurisdiction over the subject-matter, it was, under sound fundamental principles of law, in all respects a legal nullity and unenforceable. Cooley's Con. Lim. (7th Ed.) p. 575; Mitchell v. Runkle, 25 Tex.Supp. 133.
And in this clear condition of the record respecting jurisdiction of the justice court, the pertinent question is as to the power of the county court in respect to the appeal to it from such void judgment of the justice court. By the law of this state the object of an appeal from the justice court to the county court, and the extent of the authority of the county court in such appealed case, is to try the case anew on its merits, and not to review errors. Article 5, § 16, Const.; article 1950, R.S.; Carlisle v. Coffee Price, 59 Tex. 391; Railway Co. v. Lemons (Civ.App.) 152 S.W. 1189. And, thus limited in its jurisdiction, as the county court is on appeal, to trial of the case anew on its merits, the jurisdiction of the county court can be invoked and attaches only in cases that the justice court may legally try, and cannot be invoked and cannot be acquired by appeal, as firmly settled, in cases where the justice court did not have original jurisdiction over the subject-matter. Aulanier v. Governor, 1 Tex. 653; Baker v. Chisholm,3 Tex. 158; Davis v. Stewart, 4 Tex. 224; Wise v. Omalley, 60 Tex. 590; Heard v. Conly (Civ.App.) 50 S.W. 1047. Consequently, as the void proceedings of the justice court afforded no ground for jurisdiction, by appeal, in the county court, the county court would not have authority to pass on the judgment of the justice court and set it aside or adjudicate respecting it, and could only, as within its authority by an order in that particular, strike or dismiss the appeal from the docket. Able v. Bloomfield, 6 Tex. 263; Horan v. Wahrenberger, 9 Tex. 314,58 Am.Dec. 145; Roeser v. Bellmer, 7 Tex. 1; Dazey v. Pennington,10 Tex. Civ. App. 326, 31 S.W. 312.
It is therefore plain that, as the county court had no jurisdiction to entertain the appeal in this case, no appeal lies in this case to the county court, and that the *Page 720 remedy of the appellant against the void judgment, appearing so on its face, of the justice court does not necessitate an appeal, but was by injunction, when such judgment is sought to be enforced, or any benefit claimed under it. Chambers v. Hodges, 23 Tex. 110; Cooke v. Burnham,32 Tex. 129; Smith v. Deweese, 41 Tex. 595; Glass v. Smith, 66 Tex. 548,2 S.W. 195; Tucker v. Williams (Civ.App.) 56 S.W. 585; Harrison v. Lokey,26 Tex. Civ. App. 404, 63 S.W. 1030; Railway Co. v. English (Civ.App.) 109 S.W. 424; Supply Co. v. Freeze, 96 Tex. 513, 74 S.W. 303; 1 Freeman on Executions (3d Ed.) § 20.
And attempting, as appellant did, to invoke the remedy of removing a case by appeal from the justice court to the county court that was not legally appealable to the county court for want of authority in the county court to entertain the appeal, and the consequent dismissal, by operation of law, from the county court of such unauthorized and ineffectual appeal, has the result, in fact and in legal effect, of making the appellant the losing and unsuccessful party in the proceeding of the appeal. He is in the same attitude in the particular proceeding as would be a plaintiff taking a nonsuit, or a plaintiff bringing an action in a court that has no original jurisdiction to try it, and is as much so an unsuccessful party regarding liability for the costs therefor. And it is the view in this state that when the county or district court dismisses an appeal to it for want of power to try the same, the successful party, as the legal result or effect of the adjudication in that particular, is entitled to his costs of appeal, and that the court has the authority, as an incident of the power to dismiss the appeal, to enter judgment awarding them to him. Roeser v. Bellmer, 7 Tex. 1; Wadsworth v. Chich, 55 Tex. 241; Baines v. Mensing, 75 Tex. 200,12 S.W. 984; article 2038, R.S. The costs, however, it may be here intimated, that could be imposed in the county court, as within the authority of the county court, would be limited to the costs of the appeal, and cannot include the costs of the justice court as of hearing in that court. And to be explicit as affecting this record, the costs of appeal would include all such costs as were incurred from and after the filing of the appeal bond in the justice court, including transcript from the justice court, and would not include any costs involved in the hearing of the case in the justice court before and up to the time of filing the appeal bond.
The phraseology of the judgment of the county court, and the assumption that the effect of filing the appeal bond in the justice court was to avoid the judgment of the justice court, seems to be a reason for the insistence that such judgment should be reversed. And the construction that should properly be given the county court judgment is therefore involved. As the proceedings of the justice court were a legal nullity, and afforded no ground for jurisdiction, by appeal, in the county court, the filing of the appeal bond by appellant in the justice court did not, and necessarily so, operate to avoid the judgment of the justice court. It is only when an appeal is properly taken from the judgment of a justice court in a case that it had original jurisdiction to adjudicate that the perfecting of an appeal under the statutes operates to avoid the judgment of the justice court. Bender v. Lockett, 64 Tex. 566; Moore v. Jordan, 65 Tex. 395; Tel. Co. v. McKee Bros. (Civ.App.) 135 S.W. 658; Martin v. Butner, 54 Tex. Civ. App. 223, 117 S.W. 442. But, as held in Roberts v. McCamant, 70 Tex. 743, 8 S.W. 543:
"If, however, it be a case, which cannot be appealed, or if the law for perfecting appeals be not complied with, we are of the opinion that the judgment remains in force, and upon a dismissal by the county court on the ground that it has not acquired jurisdiction of the case, it is the duty of the justice to issue execution upon the original judgment at the instance of the party in whose favor it is rendered." Cariker v. Dill (Civ.App.) 140 S.W. 841.
Since the appeal bond did not in itself operate to vacate the justice's judgment, and as the county court, by appeal, had no jurisdiction, under the statute, over the case or the void judgment of the justice, the county court could only enter such judgment order as was within its authority to do. Consequently the order of decree will be construed so as to uphold the authority of the county court and its obvious intent. According to the record and the recitals in its judgment order the county court was intending in fact to pass judgment only on the motion of appellant to dismiss the appeal for want of authority to entertain it. And the verbiage of the judgment order "that said cause be, and the same is hereby, dismissed" must be considered, in view of what precedes it, as intending and having the effect simply as a dismissal or striking from the docket of the appeal as such. The word "cause," in view of what precedes it, is sufficiently comprehensive to include and truly represent the action of the court in dismissing the appeal.
The fact that the county court awarded such costs as "each" party incurred in the appeal is an adjudication favorable to that extent to appellant, and of which he cannot well complain. It was proper for appellee to complain, which he does not do, that all the costs of the appeal, rather than a portion, were not taxed against the defendants attempting the appeal.
*Page 721The judgment of the county court is affirmed.