City of Lubbock v. Green

• Citation: 312 S.W.2d 279
• Decision Date: 31 March 1958
• Docket Number: No. 6758,6758
• Parties: CITY OF LUBBOCK, Appellant, v. W. M. GREEN, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 279

312 S.W.2d 279

CITY OF LUBBOCK, Appellant, v. W. M. GREEN, Appellee.

No. 6758.

Court of Civil Appeals of Texas, Amarillo.

March 31, 1958.

Vaughn E. Wilson, City Atty., Fred O. Senter, Jr., and H. L. DeBusk, Asst. City Attys., Lubbock, for appellant.

Treadway & Blumrosen, Lubbock, for appellee.

CHAPMAN, Justice.

Because of matters raised on appellant's motion for rehearing, our opinion heretofore announced is withdrawn and the following opinion is substituted in lieu thereof.

This appeal is from an order of a District Court granting a temporary injunction temporarily enjoining the City of Lubbock, a Home Rule City 'from trying to exterminate or in any manner harming' a German Shepherd Police dog belonging to appellee, W. M. Green and ordering the judge of the corporation court to set a fair and equitable bond in the amount of a hundred dollars in order that appeal might be perfected to the County Court at Law of said county.

Sometime prior to August 13, 1957, a criminal complaint was filed in the Corporation Court of the City of Lubbock against W. M. Green, appellee, for maintaining a vicious dog. A Warrant was issued, either for his arrest or notifying him of the complaint and that he was to appear before said court on August 13, 1957, for a hearing. The complaint was filed on a legal criminal complaint form regularly used by the corporation court. On August 13, 1957, in Cause No. A5677-4, on the criminal court docket of said court a hearing was had with appellee and his attorney, J. R. Blumrosen present, at which time W. M. Green was found guilty of maintaining a vicious dog and the animal was ordered put to death. On the same day appellee gave notice of appeal to the County Court at Law of said County, the judge of the corporation court set a bond of $100, a criminal case bond was posted and the appeal was duly perfected to the county court at law from the ruling of the corporation court. After the case was docketed in the last named court a motion to quash was filed and a copy of the motion was furnished the county attorney. Thereafter, upon a hearing in open court upon the motion theretofore filed, the complaint was quashed by the county court at law. The record does not show upon what grounds the complaint was quashed. Following the action of the court in quashing the complaint appellee requested the City Animal Warden to return his dog. This request was refused and the office of the city attorney filed another complaint. The first one had been styled 'State of Texas v. W. M. Green' but the second one, using the same number as the one appealed, was styled 'City of Lubbock v. W. M. Green.' A copy of that complaint ordered a hearing to be held on the 23rd day of August, 1957, at 10:00 A.M. On the morning of August 23, 1957, a subpoena issued upon a criminal complaint was served upon J. R. Blumrosen commanding him to immediately appear as a witness before the Corporation Court wherein a criminal case was then pending against W. M. Green. It appears from the record that some testimony was taken that day but the full hearing was not had on this case until August 24, 1957, after a policeman had served a copy of the complaint on W. M. Green about noon on August 23, 1957. Neither Green nor any counsel appeared for him at the August 24 hearing. J. R. Blumrosen was present under subpoena, but in his brief filed in this court on behalf of appellee, he denies that he represented Green at the hearing. He does admit that following additional testimony and another finding by the corporation court that appellee was guilty of maintaining a vicious dog he requested the court to set a reasonable appeal bond in order that W. M. Green might appeal the case to a court of competent jurisdiction. The judge of the corporation court refused to set bond, advising Mr. Blumrosen that Green had no right of appeal from his order. Apparently the corporation court judge took the position that he was operating as an administrative officer, since that is the position that has been taken by the City of Lubbock on this appeal.

Following the corporation court hearing of August 24, W. M. Green sought a temporary restraining order in the District Court and upon a hearing thereafter conducted as to whether appellant would be temporarily enjoined the City of Lubbock was temporarily enjoined from exterminating or in any manner harming the dog of plaintiff until such time as a court of competent jurisdiction might determine the ultimate fate of said animal; that the dog belonging to appellee should remain in the custody of the animal warden of the City of Lubbock until the disposition of said dog might be determined by a court of competent jurisdiction; and the judge of the corporation court was ordered to set a fair and equitable bond in the amount of $100 in order that the plaintiff might perfect his appeal from the judgment rendered by the corporation court, to the County Court at Law of Lubbock County, Texas. It is from the action of the district court that the City of Lubbock has perfected its appeal.

Article 3, Section 4-25, Lubbock City Code provides as follows:

'Section 4-25 Vicious Dogs

'If any dog within the city shall bite, scratch or otherwise attack any person, and the person so attacked was not at the time trespassing upon the property of the owner or person having control of said dog, or if it cannot be proved beyond a reasonable doubt that the person so attacked was provoking or teasing such dog, the corporation court of the city shall have the authority to order and hold a hearing and, if such court shall determine at such hearing that such dog is vicious or dangerous to persons or other animals, the court may order that such dog be kept muzzled, or that such dog be kept within a sufficient enclosure, or that such dog be delivered to the animal warden and by him destroyed.' (Emphasis supplied.)

Article 5, Section 1 of our Texas Constitution, Vernon's Ann.St., establishes the judicial power of this state. After establishing specifically named courts it priovides 'The Legislature may establish such other courts as it may deem necessary and prescribe the jurisdiction and organization thereof, and may conform the jurisdiction of the district and other inferior courts thereto.'

Under the authority of the constitution just quoted the Legislature of our state has granted and established, through what is now Article 1194, Vernon's Ann.Civ.St. a court to be known as the 'Corporation Court.' The jurisdiction of corporation courts was established by our Legislature in what is now V.A.C.S., Article 1195.

Under our Code of Criminal Procedure, Article 833 provides for appeal from corporation court by making an appeal bond; Article 834 provides the filing of the appeal bond perfects the appeal; Article 836 provides that giving notice of appeal shall have no effect until the required appeal bond has been filed; Article 837 provides that in all appeals from corporation courts to county courts the trial shall be de novo, the same as...