Baker v. Crosbyton Southplains R. Co.

• Decision Date: 26 January 1916
• Docket Number: (No. 2433.)
• Citation: 182 S.W. 287
• Parties: BAKER v. CROSBYTON SOUTHPLAINS R. CO.
• Court: Texas Supreme Court

Page 287

182 S.W. 287

BAKER v. CROSBYTON SOUTHPLAINS R. CO.

(No. 2433.)

Supreme Court of Texas.

January 26, 1916.

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

Suit by the Crosbyton Southplains Railroad Company against J. A. Baker for injunction. Judgment for plaintiff was affirmed by the Court of Civil Appeals (146 S. W. 569), and defendant brings error. Reversed and rendered.

R. A. Sowder, of Lubbock, and Cooper, Merrill & Lumpkin, of Houston, for plaintiff in error. W. D. Benson, of Lubbock, for defendant in error.

YANTIS, J.

J. A. Baker, the plaintiff in error, secured a judgment in the county court of Lubbock county, against the Crosbyton Southplains Railroad Company, defendant in error herein. A portion of the judgment was paid. Baker caused to be issued an execution out of said county court in his favor, and was threatening to levy it upon the property of the said Crosbyton Southplains Railroad Company, defendant in error. The latter applied to the district court of Lubbock county for a temporary injunction to restrain the levy of said execution from the county court. The injunction was granted by and made returnable to the district court, and an order entered restraining the officers from levying said execution. From this order an appeal was prosecuted to the Honorable Court of Civil Appeals for the Seventh District. By said court the judgment of the district court, which granted said restraining order, was affirmed. A writ of error was granted by this court upon the question, which is controlling in the case, as to the jurisdiction of the district court to hear and determine the controversy as to the merits of the injunction.

The litigation arose in this way: The Crosbyton Southplains Railroad Company, defendant in error, brought a condemnation suit against J. A. Baker, who is the plaintiff in error in this suit, in the county court of Lubbock county, to condemn part of lots 6, 7, 8, 9, 10, 11, and 12 in block 33 of the Overton addition to the town of Lubbock, in Lubbock county, Tex. for right of way purposes. The judgment of the county court was, in effect, that the lots were condemned for right of way purposes as prayed for, and J. A. Baker was given a judgment against the said railroad company in the sum of $1,750 as damages. The judgment also provided that the sum of $973.60 should be retained in the registry of the county court to pay and satisfy a vendor's lien note owed by J. A. Baker to E. P. Watts. The railroad company paid to J. A. Baker upon said judgment the sum of $654.52, but did not deposit in the registry of the court the amount called for as a deposit by said judgment to pay the said note held by E. P. Watts. At the time the judgment was rendered in the county court, the Watts note had been placed in the hands of an attorney for collection, and attorney's fees were due thereon, but for some reason were not taken into account in rendering the county court judgment. Watts was not a party to the suit in the county court. In due time he filed a suit in said district court on said vendor's lien note against J. A. Baker, the plaintiff in error, to recover the amount of said note, interest, and attorney's fees. He also prayed for a foreclosure of his lien. The Crosbyton Southplains Railroad Company was made a party defendant in said suit by Baker. In this state of the litigation, Baker caused the execution to issue out of the county court on the judgment which had been rendered in his favor therein. The injunction sued out in the district court by said railroad company was to restrain the levy of this execution. There was no allegation by the railroad company in its application for injunction charging that the judgment of...