Robertson v. Balkam

SWEARINGEN, J.

The appellee, Mrs. H. Balkam, filed suit in the justice court against appellant, J. H. Robertson, on a promissory note for $79, together with 10 per cent, interest and 10 per cent, attorney’s fees, and to foreclose a lien on household furniture of the value of less than $150. The pleadings of appellee in the justice court were oral. Judgment was rendered against appellant for the amount, and foreclosure sued for. Appellant appealed to the county court, where judgment was again rendered against him.

Appellant assigns two errors for review by this court.

The first is that it does not appear of record that the valué of the mortgaged personal property was within the jurisdiction of the justice court. This is overruled, because a justice court is a domestic court of general jurisdiction, and the law will presume that it “had power to make the judgment rendered by it, unless the contrary is shown by the record.” Williams v. Ball, 52 Tex. 607 , 36 Am. Rep. 730 ; Koehler v. Earl, 77 Tex. 191 , 14 S. W. 28 . The record of the proceedings in the justice court did not show that the value of the furniture was beyond the jurisdiction of the court. However, the record before us from the county court shows affirmatively that the value of the furniture was less than $150, of which the justice court had jurisdiction.

The second assignment complains of error because the judgment contained an attorney’s fee of 10 per cent, of the amount of the note. The point made is that the 10 per cent, was promised to be paid only in the event the note was not paid at maturity, and that the note had not matured when suit was filed because the payer had three days of grace, and suit was filed on the last one of the three days of grace. The record before. us shows that the third day of grace, upon which suit was filed, was October 18, 1915; that the cause was tried on an amended oral pleading December 17, 1915; and the cause of action, if prematurely filed, having in the meantime accrued, the objection was cured. Dalton v. Rainey, 75 Tex. 520 , 13 S. W. 34 .

Both assignments are overruled.

The judgment is affirmed.