Cook v. Burnley

• Decision Date: 01 January 1876
• Citation: 45 Tex. 97
• Parties: WILLIAM M. COOK v. FRANCIS A. BURNLEY ET ALS.
• Court: Texas Supreme Court

45 Tex. 97

WILLIAM M. COOK

v.FRANCIS A. BURNLEY ET ALS.

Supreme Court of Texas.

1876.

ERROR from Harris. Tried below before the Hon. James Masterson.

This suit was brought February 4, 1852, in the District Court of Calhoun county, by A. T. Burnley & Levi Jones, against William M. Cook, James H. and J. W. Baldridge, _____ Sparks, _____ Chipman and Soloman Cunningham. The petition alleged ownership of three quarters by Burnley, and a legal but contingent interest by Jones, of one quarter of the league of land granted to Juan Cano, as a colonist of De Leon's colony, the laying off a town site thereon more than four years previously, and various acts of ownership, in order to establish and build up the same. That in 1849, said Cook located a 320-acre certificate, and caused a survey of 179 acres to be made on said league, extending north of Powderhorn bayou. In April, 1850, a bill had been filed in the United States Court by Burnley, against John H. Brown, John F. Segiri, Charles Mason, D. II. McDonald, Chambers Etter, C. A. Ogsbury, J. D. Cochran, and W. Hawley, to prevent their laying off a rival town, building a wharf, etc., on this 179 acres, which they were proceeding to do, under claim of title under S. A. White, and an injunction was made perpetual against the parties. After this injunction, supplemental proceedings, for a contempt in violating this injunction, and to make it perpetual as against Cook, took place in the United States Court; but on Cook's denial of all connection with Brown and others, the motion was refused. This suit was brought, alleging, subsequently, certain proceedings by Cook and the other defendants under him, to lay off and build up a rival town on said 179 acres, to build cattle pens, a wharf, etc., to ship cattle therefrom, and alleging trespasses on said land to be to the damage of plaintiffs $10,000. The prayer in the petition was as follows:

“The premises considered, your petitioners pray for a writ of injunction to restrain the said defendants, and each of them, their agents and hirelings, from entering upon the land immediately north of Powderhorn bayou, in said county of Calhoun, for the distance of 1,100 varas north of said bayou, and north of which the said Juan Cano grant extends; and from hauling, or placing any lumber, timber, or materials of any kind upon the said land, and from building any dwelling house, store, or warehouse, or building any other house or structure on said land, and from building any wharf or other structure, extending from any part of said land into Matagorda bay; said injunction to be of such a character and on such terms and conditions as to your honor may seem meet; and that on the final hearing, said injunction be made perpetual; for ten thousand dollars, which petitioners aver to be their damages; and for costs and for general relief, your petitioners pray for citations against said defendants,” etc.

The case was moved by consent to Harris county, in which, after answer filed, on motion of defendants, the court dissolved the injunction which had been granted, and dismissed the petition. On appeal to this court the judgment was reversed. (Burnley v. Cook, 13 Tex., 586.)

The case thus sent back to the Harris District Court in 1855, remained on its docket without proceeding of any kind, or order, except for continuance, until the May Term, 1867, when, on motion of Cook, it was dismissed. On his motion also, at the May Term, 1868, it was reinstated on the docket, and continued, to make parties. June 3, 1870, he filed a crosssuit, making the heirs of Burnley parties, alleging that, subsequent to the institution of this suit, a suit in ejectment against him by Burnley and Porter, the latter representing same interest as Jones, had been brought in the United States Court at Galveston for the same property and on same title, which suit in the United States Court he alleged to be a fraud on the jurisdiction and “a deliberate contempt” of the State Court, and, notwithstanding he had pleaded the pendency of this suit, judgment had been rendered against him in the United States Court for the recovery of said league of land; that he had sued out a writ of error to the Supreme Court of the United States, pending which he had made a compromise with George W. Carter, agent of Burnley's executors, copy of which he annexed.

The heirs of Burnley and Jones, August 1, 1871, amended their pleadings. They set up the suit in the United States Court, and judgment therein, and affirmance by the Supreme Court of the United States, January 23, 1867, and a further writ of error to said Supreme Court against a proceeding on its own mandate, awarding writ of possession, dismissed by said Supreme Court, as an adjudication of said controversy of title to said league of land, and an estoppel to further claim thereof by said Cook. As to the compromise, they alleged the same to be null and void on the face thereof; and, further, that the said Cook, after affirmance of said judgment in the Supreme Court of the United States, had filed his petition in the District Court of Calhoun county against the heirs of said Burnley for an injunction against said judgment, and the specific performance of said compromise, upon the same grounds set forth in this suit; that the cause was removed into the Circuit Court of the United States, answer filed thereto, and motion made to dissolve the injunction; whereupon said Cook had dismissed the bill; that afterwards, on September 14, 1868, he filed in the District Court of Calhoun county another suit for injunction against said judgment, and specific performance of said compromise, to which answer was made, and the injunction dissolved, and suit dismissed for want of any cause of action therein; that Cook sued out a writ of error to this court, but this court affirmed the judgment of the court below on certificate; that said Cook had again filed a bill in the Circuit Court of the United States, asserting the same rights under said compromise, and praying injunction against enforcement of said judgment, but that his application had been heard before his Honor Judge Woods, the judge of said Circuit Court, at New Orleans, who refused the injunction and ordered the writ of possession to be proceeded with. Exhibits were filed of the records in all the judgments and proceedings, and they were alleged to have finally adjudicated the right and title to the league of land, and all right and claim set up by him in this suit, and they prayed that his continued prosecution, or assertion thereof, in defiance of said judgments, to their costs and harrassment, be perpetually enjoined. Cook demurred, and again pleaded his original title and the various statutes of limitation to support his claim to the land. The cause coming on for trial upon the pleadings and the said records and proceedings, the court overruled Cook's demurrer, sustained the allegations and proofs of res adjudicata, and decreed a perpetual injunction. That injunction was provided for in the judgment, as follows: “that the said William M. Cook be, and he is hereby, perpetually enjoined and restrained from hereafter asserting, or in any of the courts of this State, or in any writing, or by printed publication, or by spoken words, any right or title to any part of said Juan Cano headright league of land, by virtue of any claim to the same possessed by him on the 30th day of June, 1859, the date of the judgment of the United States District Court for the eastern district of Texas, or by virtue of the instrument signed by said defendant, William M. Cook, and George W. Carter, dated 17th day of November, A. D. 1866, or by virtue of any other claim possessed by the said defendant, on or before the 5th day of August, 1869, the date of the judgment of the District Court of Calhoun county.”

Cook filed a petition for rehearing, which was refused, and then prosecuted his writ of error.

Crank & Wilson, for plaintiff in error, filed an exhaustive brief as to the powers and duties of the court first having jurisdiction of a cause embracing the same parties and the same subject-matter. They referred to the following authorities: Rose v. Himely, 4 Cr., 241; Thompson v. Tolmie, 2 Pet., 157;Wilcox v. Jackson, 13 Pet., 498;Cocke v. Halsey, 16 Pet., 71;Hickey v. Stewart, 3 How., 759;United States v. Arredondo, 6 Pet., 720;United States v. Nourse, 6 Pet., 473;Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet., 458. And specially in cases of lis pendens: Conklin's Treatise U. S. Court Practice; Taylor v. Carryl, 20 How., 583;Freeman v. Howe, 24 How., 450;Kingsland v. Spalding, 3 Barb. Ch., 341; Miller v. Hall, 1 Bish., 229; Debell v. Foxworthy, 9 B. Mon., 228;Clark v. Farrow, 10 B. Mon., 446;Hagan v. Lucas, 10 Pet., 400.

Carleton & Robertson, also for plaintiff in error.--Can Burnley et al., while prosecuting this suit, as they have never ceased to do, plead the judgment in their subsequentlybrought suit in the United States court as res adjudicata in this suit?

The State Court, in which they first sued, had jurisdiction, and the jurisdiction had attached by means of personal service; hence when a judgment final is obtained therein it will be conclusive not merely of all matters litigated, but of all that might have been brought in litigation between the parties and their privies. (Sutherland v. De Leon, 1 Tex., 250;Hatch v. Garza, 22 Tex., 176, and the cases there cited.)

By the United States statute in force when these suits were brought, it provided that suits can be directly removed from State to United States courts by defendants. (Brightley's Dig., 128, sec. 19.) When that is done, the United States Court to which the removal is made does not have concurrent but has exclusive jurisdiction.

The United States statute cited, as it provides only for a removal by defendants, when construed in accordance with the rule expressio unius est exclusio alterius, excludes the conclusion that...