Opinion · Court of Appeals for the Fifth Circuit

Crescent Lumber & Shingle Co. v. Rotherum

218 F.2d 638

Type
Opinion
Court
Court of Appeals for the Fifth Circuit
Jurisdiction
Federal
Date
1955-01-25
Topic
general

PER CURIAM. Appellant, a Washington corporation, sued defendants, resident citizens of Texas, upon a sworn account1 for materials (lumber) furnished in the amount of $2,-767.45, and $500 alleged to be reasonable attorney’s fees. The trial court dis*639missed the complaint for want of jurisdiction, on the theory that the attorney’s fees were not recoverable, and therefore the amount in controversy did not exceed $3,000, exclusive of interest and costs. This was error. Article 2226, Vernon’s Civil Statutes, as amended Acts 1953, 53rd Leg., p. 101, ch. 67, § 1, clearly provides for recovery of reasonable attorney’s fees, in addition to the claim and costs, on valid claims for, among other things, materials furnished, or suits founded upon a sworn account or accounts.2 This right to reasonable attorney’s fees, in addition to the claim and costs, is a liability properly enforceable in a federal court, to be included in determining the amount in controversy.

Citator

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Cited by
6 opinions
CRESCENT LUMBER SHINGLE COMPANY v. ROTHERUM,218 F.2d 638(5th Cir. 1955)
CRESCENT LUMBER SHINGLE COMPANY, Appellant, v. J.C. ROTHERUM and R.W.
Anders, jointly and severally, as individuals and as partners in the firm
of J.C. Rotherum Lumber Company, a partnership, Appellees.
No. 14994.
United States Court of Appeals, Fifth Circuit.
January 25, 1955.
Wm. Madden Hill, Dallas, Tex., Ungerman, Hill Ungerman, Dallas, Tex., for appellant.

No appearance for appellee.
Before HUTCHESON, Chief Judge, HOLMES, Circuit Judge, and ALLRED, District Judge.
PER CURIAM.
Appellant, a Washington corporation, sued defendants, resident citizens of Texas, upon a sworn account1for materials (lumber) furnished in the amount of $2,767.45, and $500 alleged to be reasonable attorney's fees. The trial court dismissedPage 639the complaint for want of jurisdiction, on the theory that the attorney's fees were not recoverable, and therefore the amount in controversy did not exceed $3,000, exclusive of interest and costs. This was error.

Article 2226, Vernon's Civil Statutes, as amended Acts 1953, 53rd Leg., p. 101, ch. 67, § 1, clearly provides for recovery of reasonable attorney's fees, in addition to the claim and costs, on valid claims for, among other things, materials furnished, or suits founded upon on a sworn account or accounts.2This right to reasonable attorney's fees, in addition to the claim and costs, is a liability properly enforceable in a federal court, to be included in determining the amount in controversy. Missouri State Life Ins. Co. v. Jones,290 U.S. 199,54 S.Ct. 133,78 L.Ed. 267.

Reversed.Page 642
  1. Under Rule 185, Texas Rules of Civil Procedure, formerly Art.3736, Vernon's Texas Civil Statutes. ↩
  2. As originally enacted the amount of attorney's fees was limited to $20 but this limitation was removed by amendment in 1949. The 1953 amendment added "or suits founded upon a sworn account or accounts." ↩