On Motion for Rehearing. In support of the jurisdiction of the district court it is now contended that one of the primary purposes of this suit is to secure a writ of mandamus and that the Constitution confers upon district courts the general power to issue such writs. The power conferred by the Constitution upon district courts to issue writs of mandamus and injunction is found in section 8 of article 5, and is as follows: *Page 1137
"And said (district) court, and the judges thereof, shall have power to issue writs of habeas corpus, mandamus, injunction, and certiorari, and all writs necessary to enforce their jurisdiction."
Section 16 of the same article contains the following provision relating to county courts:
"And the county court, or judge thereof, shall have power to issue writs of injunction, mandamus, and all writs necessary to the enforcement of the jurisdiction of said court, and to issue writs of habeas corpus in cases where the offense charged is within the Jurisdiction of the county court, or any other court or tribunal inferior to said court."
There is no substantial difference in the general scope of the powers conferred by these two provisions as to writs of mandamus and injunction. The authority of the district court to issue such writs in cases not falling within the jurisdiction of county courts is to be found in a subsequent portion of section 8, which provided that such court — "shall have general original jurisdiction over all causes of action whatever for which a remedy or jurisdiction is not provided by law or this Constitution."
In the case of Lazarus v. Swafford, 15 Tex. Civ. App. 367, 39 S.W. 389, the Court of Civil Appeals for the Second District held that the jurisdiction of the county court to issue writs of injunction in cases where the amount in controversy was over $200 and less than $500 was exclusive. That holding has been reaffirmed in numerous cases by other Courts of Civil Appeals, and we know of no case in which a contrary holding has been adopted.
In Cotton v. Rhea, 106 Tex. 220, 163 S.W. 4, Justice Phillips used this language:
"As the allegations of the petition in the injunction suit were not such as to bring the case within the original jurisdiction of any other court, but were sufficient to invoke equitable relief, the issuance of the writ was within the jurisdiction of the district court. Gamel v. Smith [3 Tex. Civ. App. 22], 21 S.W. 628. We express no opinion upon the question of the right to maintain such a suit in that court if subsequent pleading should disclose that the value of the property involved was an amount within the jurisdiction of the county court."
That suit was one to restrain the enforcement of a judgment and the sale of exempt property. It was held that the district court had no jurisdiction to restrain the enforcement of a judgment of another court which was not void upon its face. The language quoted was used with reference to that portion of the petition which asked for an injunction restraining the sale of the exempt property. The petition in that case failed to state the value of that property. The ruling announced rather tends to support the case of Lazarus v. Swafford, supra.
There is a class of controversies, where the right involved cannot be measured in dollars and cents, which fall within the original jurisdiction of the district court conferred by these provisions of the Constitution last above quoted. The case of Thorne v. Moore, 101 Tex. 205,105 S.W. 985, cited by the appellee, is one of that kind; and still others might be mentioned. When a suit for one of these extraordinary writs had for its object the preservation or enforcement of some property right which can be measured by a monetary standard, the jurisdiction of the trial court to grant the writ must be determined by the value of that right. That value represents the amount in controversy. If it affirmatively appears from the petition seeking a writ of mandamus or injunction, when considered as a whole, that the amount in controversy is within the jurisdiction conferred upon the county court, then, under the ruling of the Supreme Court above referred to, the district court has no authority to grant the writ.
It is contended in this motion that when the appellee's petition is considered in its entirety it appears that the main or at least one of the purposes of the suit is to compel by mandamus the trustees of Park independent school district to recognize the validity of her contract and to perform it according to its terms. The only "recognition" or "performance" of that contract which a court could by writ of mandamus impose upon the trustees would be the act of signing the vouchers necessary to enable her to draw her salary monthly as it became due. But inasmuch as the appellee has elected to ask for judgment establishing her claim for salary due on her contract, the rendition of a judgment upon that claim must logically precede the granting of the writ. The right to the writ being thus made dependent upon the judgment, its issuance could operate merely as a means of executing the judgment, and therefore become an ancillary matter. Furthermore, it cannot be presumed in advance that the trustees would refuse to sign vouchers according to the statute after a judgment establishing the claim of the appellee had been rendered. It would be an unusual proceeding to render a judgment against the trustees upon the claim, and at the same time grant a writ of mandamus to compel the enforcement of that judgment.
This is not a suit for damages resulting from the breach of a contract, nor one to establish the validity of the contract as an entirety, but must be treated as a suit to recover the salary due under the terms of the contract. The real test of jurisdiction then is the amount of money for which, under appellee's averments, a judgment might have been rendered. Contracts of this character which provide for payments in monthly installments give a right of action upon each installment as it becomes due. Racke v. Anheuser Busch Br. Ass'n, 17 Tex. Civ. App. 167,42 S.W. 774; Davidson v. Hirsch, 45 Tex. Civ. App. 631, 101 S.W. 269; Lorillard v. Clyde, 122 N.Y. 41, 25 N.E. 292, 19 Am. St. Rep. 470.
The appellee's petition shows that net more than seven installments had matured when the amended petition was filed. That fixed the limit for which a judgment could *Page 1138 have been rendered for $490. Conceding that appellee might have been entitled under her contract to claim her salary for eight months, the petition showed that the eighth installment had not matured. It is true that it had matured at the time the case was tried, but that fact alone could not authorize the rendition of a judgment for that additional sum. It is only such rights as have accrued at the time the last petition is filed that can be adjudicated by the court. Collins v. Ballow, 72 Tex. 330,10 S.W. 248; Ballard v. Carmichael, 83 Tex. 355, 19 S.W. 734. The cases above referred to relate to actions of trespass to try title and hold that a plaintiff cannot recover upon proof of a title acquired after his last amended petition was filed. This ruling is manifestly based upon the proposition that in such cases the pleadings do not authorize such proof. In the case before us the last installment was a separable cause of action, and the appellee could not claim it except upon pleadings and proof that it was due, and that she had performed the services contracted for that month, or that she was ready, able, and willing to perform them and had been prevented from so doing by the trustees. We therefore adhere to our former decision, and the motion for rehearing is overruled.