126 S.W. 284
GARTH 
v. 
CHILDS et al.
Court of Civil Appeals of Texas.
March 5, 1910.
        Error from Freestone County Court; John Terry, Judge.
        Action by D. T. Garth against T. L. Childs and others. There was a judgment dismissing the case, and 
plaintiff brings error. Reversed and rendered.
        This suit was instituted by D. T. Garth to recover of T. L. Childs and the city of Teague certain 
attorney's fees alleged to be due him. It was alleged that the city of Teague was duly incorporated; that 
Childs was its mayor and also its recorder; that plaintiff was city attorney of said city; and that by virtue 
of his office he was entitled to the sum of $210, as fees in 71 cases, wherein pleas of guilty were entered 
in the corporate court, and an attorney's fee of $3 was paid, and which fine and costs had been paid the 
said recorder. The defendants answered by a general and special exception, a plea to the jurisdiction, 
alleging, in substance, that if there was anything due plaintiff by the city it was not more than $40, and 
that he had alleged the amount to be over $200 for the fraudulent purpose of conferring jurisdiction on 
the county court. Defendants also pleaded a general denial. The case was tried by the court without a 
jury. The trial court filed conclusions of fact wherein it found, among other findings, that Garth was city 
attorney; that the city of Teague was duly incorporated under the General Laws of Texas; that T. L. Childs 
was its mayor and ex officio recorder; that during the time set out in the petition there had been 24 cases 
tried in the recorder's court in which a plea of guilty was entered, upon which judgment had been entered, 
and the fine and costs paid, including a fee of $3 assessed and collected for the attorney, making a total 
of $72. The court concluded as a matter of law that there was due appellant as attorney's fees $72. The 
court being of the opinion that he did not have jurisdiction to render judgment for this amount, he 
dismissed the case for want of jurisdiction.
        Alexander & Hogsett and D. T. Garth, for plaintiff in error.
        BOOKHOUT, J. (after stating the facts as above).
        The answer of defendants consisted of a general and special exception, a plea to the jurisdiction, and 
general denial, all contained on one page and all filed at the same time. The plaintiff filed a motion to 
strike out the plea to the jurisdiction, because it was not filed in due order of pleading; it being contended 
that the plea to the jurisdiction was waived by it because filed after the general and special exceptions. 
The entire answer was on one sheet of paper, and was filed June 3, 1908. It not appearing that the plea 
to the jurisdiction was filed after the exceptions, the same was not waived by the fact that the exceptions 
preceded the plea. Bank v. Turner, 111 S. W. 670. The trial court was of the opinion that, because the 
evidence showed that plaintiff's proof only entitled him to recover $72, the county court was without 
jurisdiction to enter judgment for that amount. In this the court erred. There was no finding that the 
plaintiff had alleged in his petition the amount of the indebtedness due him by defendants at $210 for the 
fraudulent purpose of conferring jurisdiction on the county court, nor is there any evidence In the record 
to support such a finding. In the absence of a finding that the plaintiff alleged the indebtedness to be $210 
for the fraudulent purpose of conferring jurisdiction on the county court, that court had jurisdiction of the 
case. It was the duty of the court, under the facts, to render such judgment for plaintiff as the evidence 
authorized, which, as shown, was $72. The judgment will therefore be reversed, and judgment here 
rendered that the appellant have and recover of appellees judgment for $72 with 6 per cent. per annum 
interest from July 20, 1908, the
Page 285
day of trial in the county court. All costs are taxed against appellees.
        Reversed and rendered.