(dissenting).
I respectfully dissent from the majority opinion in this cause.
I believe we have sufficient information before us to make a determination, as a matter of law, on the question of whether or not the subject matter of the controversy now pending in the Justice Court of Precinct 4, Winkler County, Texas, is within the jurisdiction of that court. Attached to relator’s petition for writ of prohibition, among other exhibits, are the following:
(1) The original petition of plaintiff Jerry M. Eddy (respondent) filed in Cause No. 114 in the Justice Court case.
(2) The depositions of Chester King and wife, Jessie Lee King, the named insured *411in the policy of insurance issued by Relator; the depositions of Chester Leo King .and of respondent Jerry M. Eddy.
(3) Certified copy of the judgment in Cause No. 5754, styled Joseph L. Braimer et al. v. Jerry M. Eddy, as the same is consolidated with Causes Nos. 5755 and 5766, wherein judgment was recovered against respondent Eddy in the sum of $33,159.25.
(4) Copy of the coverage and liability provisions of the policy of insurance involved in the litigation, as well as copy of the application of Chester King to relator for the policy of insurance involved here.
Pursuant to the rule that the amount in controversy is determinable from the whole of the plaintiff’s pleadings, it has been held that the prayer for judgment is of secondary importance and that the Justice has no jurisdiction where the total by correct summation exceeds Two Hundred Dollars. Hooper Lumber Co. v. Texas Fixture Co., 111 Tex. 168, 230 S.W. 141; Pecos & N. T. R. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S.W. 294; Gossett v. Manley, Tex. Civ.App., 43 S.W.2d 622.
Relator contends, and the depositions on file herein reflect, that respondent Eddy had the permission of Chester Leo King, the son of the named insured, to drive the vehicle, but that he did not have the permission of the named insured to drive the •car at the time that it was involved in the accident. Thus, it is relator’s contention that Eddy was not a permissive user of the insured vehicle, and therefore not covered by the policy. Respondent Eddy contends (as reflected by his pleadings in the Justice Court) to the contrary. The only issue in the case is joined. It is the policy of insurance and the question of coverage that is in the controversy, and the determination of a $20,000 lawsuit, not the recovery of $19.90, which is only an incident to the actual controversy.
The courts of civil appeals are vested with certain appellate jurisdiction by the Constitution of Texas. In addition, the Constitution authorizes the Legislature to grant to these courts such other jurisdiction, original and appellate, as it sees fit. Under this provision, the Legislature has enacted several statutes giving to the courts of civil appeals original jurisdiction to issue certain extraordinary writs, and while only one of these (Article 6049c, Sec. 11), specifically authorizes the issuance of writs of prohibition, Article 1823, Vernon’s Annotated Texas Civil Statutes, provides that these courts may issue all writs necessary to enforce their jurisdiction.
Many of the cases in which original proceedings have been instituted in courts of civil appeals for writs of prohibition have involved situations where a party has sought to prohibit a city council, a commissioners’ court, or other such body, from performing a legislative or purely administrative function; or, to prohibit another court from performing some act (which, although perhaps erroneous) was clearly within the jurisdiction of such court to act upon. In each of these cases, an adequate remedy to test the propriety of the action complained of and sought to be restrained by writs of prohibition have been available after the act or thing complained of has been done. In such cases, courts of civil appeals have wisely refused the relief sought, on the ground that the court’s potential, but not actual, jurisdiction was involved.
Such is not the case now before us. Here we have a court of inferior jurisdiction (not a political entity with legislative and administrative powers) exercising, or about to exercise, jurisdiction (judicial powers) in a controversy outside or beyond the limits of its jurisdiction. The record before us clearly reflects that the case has not only been filed, but has been set down for trial. From this, it may be assumed that the Justice Court accepted jurisdiction in the matter, and is not merely threatening to take jurisdiction. The only appropriate action the Justice can or should take in this matter is to dismiss the action upon the lifting of prohibition
*412This is not a situation in which the inferior court has actual jurisdiction and prohibition is sought to prevent that jurisdiction from being wrongfully exercised. This is a case where the Justice Court has no jurisdiction at all, but is attempting to exercise jurisdiction over a matter or cause over which it has no constitutional or statutory authority to act. The situation is further confounded by the holdings in the case of Forman v. Massoni, Tex.Civ.App., 176 S.W.2d 366, (writ refused), and Bybee v. Fireman’s Fund Insurance Co., Tex., 331 S.W.2d 910; Fireman’s Fund Insurance Co. v. Bybee, Tex.Civ.App., 322 S.W.2d 657 in which writ was granted and then dismissed. Both the Massoni and the Bybee cases seem to announce the rule that once the Justice Court has accepted jurisdiction of a case, even though the case involves a matter over which the Justice Court does not have jurisdiction, if the amount of the final judgment in such case is less than $20.00 (or the amount required to confer appellate jurisdiction on the County Court), such judgment, even though not subject to judicial review (except possibly by the United States Supreme Court) is a final judgment, sufficient to invoke the principle of estoppel by judgment, and thus preclude a litigant, adversely affected by such judgment, from thereafter asserting a position contrary to the facts found or necessarily found by the Justice Court in order to support the judgment of such court.
The suit brought by Eddy, while in the form of an action at law to recover only the sum of $19.90, involved and invoked an adjudication of the rights of the parties in that suit (and possibly the rights of the judgment creditors on the judgment obtained by them against Eddy in the District Court (who are not parties in the Justice Court) ), under the terms and provisions of a policy of insurance providing coverage of $20,000 and for which sum relator is liable to respondent and/or respondent’s judgment creditors, if it be determined that the coverage provisions of the policy inured to the benefit of the respondent Eddy. It is Eddy’s contention that he was covered by the policy provisions, and while he seeks only $19.90, he must secure a finding from the Justice Court favorable to this contention before he can, or would, be entitled to recover anything. Thus, the real issue involved in the Justice Court action is not the recovery of $19.90, but a determination of the rights of the parties under the policy of insurance.
I think the exhibits in this case, together with the pleadings filed by respondent, as plaintiff, in the Justice Court, clearly establish the fact that if Eddy has a claim at all against relator, such claim is for a liquidated sum of $20,000, and not merely a portion of that sum, as represented by the $19.-90 which he elected to pay on the judgment obtained against him by the Braimers and others. The case, in my opinion, belongs in the District Court, and not in the Justice Court.
In a recent case by the Supreme Court of Texas, in an opinion by Justice Walker, a principle of law was clearly established, that respondent Eddy might have sued relator in a direct action in the District Court for the full amount of the coverage he claims, plus interest on the judgment. Plasky v. Gulf Insurance Co., Tex., 335 S.W.2d 581. Had he done so here, rather than attempt to split his cause of action jurisdiction unquestionably would have been in the District Court. I would hold that respondent, or any party to a law suit, may not arbitrarily split a cause of action, or voluntarily will that an arbitrary part of a liquidated demand be extinguished, in order to deprive a proper court of its jurisdiction or to confer jurisdiction upon an inferior court.
Article 1823 (supra) does not expressly restrict courts of civil appeals from issuing writs of prohibition, but does expressly confer upon such courts and the judges thereof the power and authority to issue writs of mandamus "and all other writs necessary to enforce the jurisdiction of said courts’’
*413If all such suits were instituted in the Justice Court rather than in the courts of appropriate jurisdiction, and the judgment of such Justice Court, by reason of the amount involved, was not subject to review, as seems to be the case under the holdings announced in the Massoni and Bybee cases, supra, it would appear that that jurisdiction of not only the courts of civil appeals is threatened, but that the jurisdiction of all the courts of this State, except that of the justice courts, is threatened, with the only possible appeal being a questionable right of direct appeal to the Supreme Court of the United States.
In the interest of justice, and in order to promote and to preserve the integrity of the jurisdiction of our several courts, as that jurisdiction has been delegated and established by the Constitution and laws of the State of Texas, I would grant relator’s application for writ of prohibition, and permanently restrain the parties and the Justice from proceeding with the cause here involved in the Justice Court.