Browder v. Memphis Independent School Dist.

• Decision Date: 22 December 1915
• Docket Number: (No. 2783.)
• Citation: 180 S.W. 1077
• Parties: BROWDER et al. v. MEMPHIS INDEPENDENT SCHOOL DIST. et al.
• Court: Texas Supreme Court

Page 1077

180 S.W. 1077

BROWDER et al. v. MEMPHIS INDEPENDENT SCHOOL DIST. et al.

(No. 2783.)

Supreme Court of Texas.

December 22, 1915.

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

Action by John Browder and others against the Memphis Independent School District and others. A judgment for defendants being affirmed by the Court of Civil Appeals (172 S. W. 152), plaintiffs bring error. Affirmed.

H. D. Spencer and Moss & Leak, all of Memphis, and Ramsey, Black & Ramsey, of Austin, for plaintiffs in error. Presler & Thorne, of Memphis, for defendants in error.

PHILLIPS, C. J.

The purpose of the suit, instituted by the plaintiffs in error, was to have annulled an order of the trustees of the Memphis independent school district for the issuance of bonds in the amount of $40,000 for the benefit of the district, and to obtain a cancellation of the bonds. A previous suit had been filed by the same plaintiffs against the same defendants on January 20, 1914, in which an injunction was applied for to restrain the sale of the bonds. Its trial was entered upon at the regular term of the court, but the plaintiffs took a nonsuit. That term of the court adjourned on January 21, 1914.

This suit was filed on January 23, 1914, and was properly returnable to the next regular term, convening on June 1, 1914. The district judge on February 12, 1914, ordered a special term of court to convene February 26, 1914, for the purpose, it appears, of trying this case; the defendants having requested that a special term be ordered for that purpose. The defendants appeared and answered at the special term, and the case was tried at such term, resulting in a judgment for the defendants; a plea to the jurisdiction interposed by the plaintiffs being overruled. The principal question in the case is in respect to the authority of the court to try the case at the special term. The plaintiffs in error contend that it had no such authority.

The articles of the statutes which bear upon the question are as follows:

"Art. 1720. Whenever it may become advisable, in the opinion of a district judge, to hold a special term or terms of the district court in any county in his district, such special term or terms may be held; and such district judge may convene such special term at any time which may be fixed by him. * * *"

"Art. 1723. No new civil cases can be brought to a special term of the district court.

"Art. 1724. The juries for any special term shall be summoned in accordance with the law regulating juries at regular terms of court; and at any special term all proceedings may be had in any case which could be had at any regular term of such court; and all process issued to a previous regular term or to such special term, and all orders, judgments and decrees, and all proceedings had in any case, criminal or civil, which would be lawful if had at a regular term, shall have the same force and effect; and any proceeding had may be appealed from under the same rules, regulations and limitations as provided for in appeals from regular terms of court."

A court acquires jurisdiction over a plaintiff by his submission to it of the cause of action which he alleges. A voluntary appearance is as effectual to confer jurisdiction over a defendant as the due service of process. The case was cognizable by the district court. The defendants, as already stated, entered their appearance at the special term. The question of the court's jurisdiction, therefore, does not arise unless the effect of article 1723 is to interdict the trial of a new civil case at a special term of the district court.

Article 1723 prohibits the bringing of a new civil case to a special term; and it is plain that a defendant would not be required to answer at such term. It does not purport to deal with the power of the court to try a new civil case at a special term where its jurisdiction of the defendant is made complete by other means than the service of process. It is apparent that the purpose...