On Motion for Rehearing. Upon consideration of appellant's motion for rehearing in *Page 230 this cause, we find that in the preparation of the original opinion by this court we overlooked appellant's fourth assignment of error. That assignment complains of the refusal of the trial court to permit appellant to introduce certain evidence touching the issue of bad faith on the part of appellee in filing this suit in the justice's court. By a proper bill of exceptions it is made to appear that while the appellant, Stripling, was on the witness stand, he was asked the following question by his counsel, to wit:
"Mr. Stripling, state whether or not you were present at each of the trials in this case in the Justice court and whether you remember that C. C. Watson, the attorney for the plaintiff [appellee], stated in said trials and agreed to the court and jury that he knew before he filed this suit that the automobile in question was worth $250 or $300, but that he brought the suit in the justice court for the reason that he could get a trial quicker in the justice court than he would by filing suit in the county court."
The bill further shows that the appellee objected to the answer of the witness Stripling to this question, upon the ground that the same would be immaterial, which objection the trial court sustained, and refused to permit appellant, while such witness, to answer the question. It is further shown by the bill that, had the witness Stripling been permitted to answer the question, he would have answered that he did hear appellee's counsel state at the trial of this cause in the justice court that he (appellee's counsel) did know at the time he filed the suit in the justice court that the automobile in question was worth $250 or $300, but that he brought the suit in the justice court so that he could get a trial quicker than he could have done by filing it in the county court. The action of the trial court in sustaining the objection interposed to this evidence was clearly error, because such proffered testimony was material on the issue of bad faith of appellee and his counsel in filing the suit in the justice court, which issue was tendered by the answer of the appellant in this case. If this testimony had been admitted, as it should have been, against the objection offered thereto, it would have clearly raised the issue before the jury as to whether appellee knew at the time he filed the suit in the justice court that the value of the automobile exceeded the jurisdiction of that court, and that its alleged value for a less amount so as to bring it within the jurisdiction of that court was fraudulently made; and thus there would have been an issue which appellant could properly have requested the court to submit to the jury. But, without this evidence, as is admitted by appellee, there was no issue of fact to go to the jury on that point, and appellant could not have properly requested the trial court to submit such issue.
Therefore appellant's motion for rehearing is granted, and because of the error of the trial court, as pointed out by the fourth assignment, its judgment is reversed, and the cause is remanded.