Certified questions from the Court of Civil Appeals for the Second District, as follows:
"The above-styled and numbered cause is now pending before this court on a motion for rehearing, and we deem it advisable to certify to Your Honors, for decision, the question whether or not the County Court of Childress had jurisdiction over this cause at the time it rendered the judgment herein appealed from. On July 3, 1905, appellee, as plaintiff in the County Court of Childress County, filed his third amended original petition, seeking to recover damages for alleged injuries to a shipment of cattle, wherein he prayed judgment for the sum of $940.40, together with interest and costs of suit, his cause of action having accrued, according to the allegations of his pleading, on August 25, 1903, so that the aggregate damages then claimed amounted to more than $1,000. It was upon this amended pleading that the trial was had, and the record does not contain any of the abandoned pleadings of the plaintiff, nor does it disclose when they were filed, except the second amended original petition, which was filed January 5, 1904."
For most purposes an amended petition, which sets up no new cause of action, takes the place of the original petition, and relates back to the time of the institution of the suit. (Tolbert v. McBride, 75 Tex. 95.) The claim which it asserts is to be regarded as if asserted when the suit was brought. The question as to the amount put in controversy in this case by the plaintiff's pleadings must, therefore, be determined as if it arose upon the original petition. Thus tested, no more was claimed than the court then had jurisdiction to adjudge. The date of the institution of the suit is not given by the certificate, but it appears that it must *Page 286 have been before January 5, 1904, when the second amended petition was filed. Up to that time six percent added to the amount of damage alleged to the cattle would not exceed $1,000. Hence, it is evident that the amount claimed when the suit was brought was within the jurisdiction of the County Court, and judgment for that amount could have been rendered had the cause been then tried. Taking the amended pleading as speaking from that date, it claimed no more than it is to be presumed was claimed in the original petition. The cause of action asserted was of such a nature that damages might accumulate pending the action, which is true of many actions, as, for instance, those brought for the use of property detained, and the like; but the accrual of further damages in cases of that character does not take away the power of the court to give judgment for an amount claimed which is within its jurisdictional limits. The plaintiff in such cases, with proper pleadings, may recover the entire damage which he has suffered up to the trial, but this right may be restricted by the law limiting the jurisdiction of the court in which he has seen fit to sue. Having brought his action for an amount within the jurisdiction, he is entitled to such judgment as the court has power to render.
The case of Gulf, West Texas Pacific R.R. Co. v. Fromme (98 Tex. 459) decided the question as to the appellate jurisdiction of the Court of Civil Appeals; in other words, as to the right of appeal, as dependent on the amount in controversy, and not as to the jurisdiction of the court from which the appeal was taken. The two questions are not always determinable from the same data, as may readily be deduced from what we have already said. The jurisdiction of a court a quo, aside from questions arising from the subsequent assertion of new causes of action, is determined by the matter put in issue when the suit is brought. But as, in cases in which damages accumulate pending the action, the amount recoverable when judgment is rendered may be greater than that recoverable at its institution, the right of appeal is properly held to depend upon the amount in issue and which the court has the power to adjudge at the time of the trial. This is the holding in the Fromme case.
What we say has no reference to amendments by which a plaintiff, by amending his pleadings, sets up a new cause of action, or increases the amount originally sued for so as to claim an amount not within the jurisdiction of the court. Questions which might thus arise are not involved, there being nothing to show that the plaintiff ever increased or changed his demand.
The question is answered in the affirmative. *Page 287