Holcombe v. Lorino

• Citation: 79 S.W.2d 307
• Decision Date: 20 February 1935
• Docket Number: Motion No. 11650; No. 6782.
• Parties: HOLCOMBE et al. v. LORINO.
• Court: Supreme Court of Texas

Page 307

79 S.W.2d 307

HOLCOMBE et al. v. LORINO.

Motion No. 11650; No. 6782.

Supreme Court of Texas.

February 20, 1935.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Bernard Lorino against Oscar F. Holcombe and others. Judgment for defendants was reversed and remanded, with directions, by the Court of Civil Appeals , and defendants bring error. Judgment of Court of Appeals reversed, and judgment of trial court affirmed.

Superseding 76 S.W.(2d) 509, which reversed 71 S.W.(2d) 402.

R. R. Lewis, City Atty., and George D. Neal, W. M. Holland, and W. E. Boyd, Asst. City Attys., all of Houston, for plaintiffs in error.

Charles Murphy and Sewall Myer, both of Houston, for defendant in error.

SHARP, Justice.

After a careful consideration of the motion for rehearing filed herein by counsel for defendant in error, we have decided to substitute the following opinion for the original opinion rendered in this case. 76 S.W.(2d) 509.

On the 2d day of November, 1933, Bernard Lorino filed in the district court for the eightieth judicial district of Harris county his original petition for a temporary injunction against the mayor and commissioners of the city of Houston from interfering with his possession of stall No. 14, or in any manner interfering with his trade, or from compelling him to move or move his fixtures during the pendency of the suit, or until the further orders of that court. The injunction was granted as prayed for. Lorino filed amended pleadings, alleging, in substance, as the basis of his cause of action, the following facts: That he had a rental agreement with the city whereby he might use and occupy stall No. 14 in the city market, owned and operated by the city of Houston, for so long as he paid rent thereon and complied with the rules and regulations promulgated by the city of Houston for the operation of its city market; that prior to the time of his rental contract with the city, stall No. 14 was occupied by a tenant who had become in arrears with the rent on said stall to the extent of $375; that Lorino did rent stall No. 14 from the city of Houston, paid the $375 back rent due by the former tenant, agreed to install new fixtures and to improve the premises, and the authorized agents and representatives of the city of Houston agreed that he could occupy the space for so long a period as he paid the rent therefor and conformed with the reasonable rules and regulations governing the city market; that he did install new fixtures for the purpose of conducting his business, to the value of approximately $5,000; that he had built up a remunerative business by operating stall No. 14 as a fish market; that he paid back rent amounting to $375 due by a former tenant; that the fixtures he had installed will be of no value to him if required to vacate stall No. 14 in the city market; that so long as he pays rent on stall No. 14, and complies with the rules and regulations of the city of Houston for conducting its city market, he is entitled to remain in said premises. He further alleged that the defendants are relying upon some ordinance of the city of Houston which attempts to give to the mayor and/or the city council the right "at their or either of their pleasure" to cancel leases of tenants in said market; that on the 26th day of October, 1933, the mayor and city council gave notice in writing to Lorino that his rental contract in reference to stall No. 14 had been canceled and revoked, and he was asked to vacate the premises; and he prayed that the city be restrained permanently from in any manner interfering with his possession of stall No. 14, and in any manner interfering with his trade, and from compelling him to move and move said fixtures.

The trial court sustained a general demurrer to his original as well as amended pleadings, without hearing the case upon its merits, and refused the injunctive relief prayed for. Lorino appealed to the Court of Civil Appeals at Galveston, and that court reversed the judgment of the trial court, and remanded the cause for trial, with instructions. 71 S.W.(2d) 402, 405. The Court of Civil Appeals in its opinion sets out in detail the allegations embraced in Lorino's pleadings, and we refer to the opinion for a further statement of the matters alleged in the pleadings.

On appeal to the Court of Civil Appeals, counsel for defendant in error, among other things, contended:

"The District Court is the proper court to hear and determine the City of Houston's right, if any, to cancel this lease and is the proper court to hear and determine appellant's equities, and having first acquired jurisdiction the District Court should not surrender its jurisdiction to a Justice Court afterwards attempting to acquire jurisdiction of a forcible entry and detainer proceeding, which Justice Court has no jurisdiction to hear and determine appellant's equities and enter judgment therefor. * * *

"Appellant's allegations in his petition show equitable rights in him and show city's refusal to offer to do equity and appellant having filed suit for injunction in the District Court and that court having acquired prior jurisdiction of said matter, the city should be enjoined from thereafter, either by force or by proceeding in Justice Court, ousting appellant from possession until appellant's equitable rights are determined and appellant should not be disturbed in his possession until he is actually reimbursed and paid whatever sums the court determines is proper to restore his status quo. * * *

"A Justice Court is without jurisdiction in a forcible detainer suit to determine the tenant's equities and the amount of reimbursement due him and to render a valid judgment on such issues."

The Court of Civil Appeals held that: "The availability of equitable aid in his behalf through the court he so appealed to is clear, irrespective of whether he also had a remedy by way of damages that might in part have been set up in defense of a forcible detainer suit in a justice court the city had filed to oust him of his possession after he had so sought injunction in the district court (33 Corpus Juris, p. 867, par. 84, and cited authorities); for it is plain that the limited powers of that inferior tribunal in that kind of a proceeding would not have afforded a legal remedy as full and complete as an injunction, which is the test laid down in our authorities."

The court further said: "The order of the district court appealed from will therefore be reversed, and the cause will be remanded, with directions to that court to grant the temporary injunction prayed for, pending a final trial of the whole cause of action on its merits, inclusive of that seeking damages and a permanent injunction, and thereafter to proceed with it as one over which it has full jurisdiction under the allegations of the petition."

The effect of the judgment of the Court of Civil Appeals is that the district court has exclusive jurisdiction of this cause, and the city of Houston is prohibited from instituting and prosecuting a forcible entry and detainer suit to oust Lorino from such stall, which he claims to hold by reason of a lease contract.

Lorino does not allege any title to the premises, and has made no allegations that the title to said property is involved, nor that the city of Houston is insolvent and unable to respond in damages for a breach of the lease agreement, nor that the city intends or contemplates resorting to wrongful or unlawful acts; nor does he allege sufficient facts to show that he has no adequate remedy at law, and will suffer irreparable injury if forcible entry and detainer proceedings are instituted and prosecuted.

The Court of Civil Appeals erred in holding that, as all of the alleged rights of Lorino could not be urged and adjudicated in the justice court, on account of its limited jurisdiction in answer to a forcible entry and detainer suit, the district court appealed from has exclusive jurisdiction to adjudicate all matters arising between the city and defendant upon this lease contract, and for that reason he is entitled to an injunction restraining the city from interfering with him in the right of possession of stall ...