Cunningham v. City of Corpus Christi

• Citation: 260 S.W. 266
• Decision Date: 20 February 1924
• Docket Number: (No. 7184.)
• Parties: CUNNINGHAM, Judge, et al. v. CITY OF CORPUS CHRISTI.
• Court: Court of Appeals of Texas

260 S.W. 266

CUNNINGHAM, Judge, et al. v. CITY OF CORPUS CHRISTI.

(No. 7184.)

Court of Civil Appeals of Texas. San Antonio.

February 20, 1924.

Rehearing Denied March 26, 1924.

Appeal from District Court, Nueces County; W. B. Hopkins, Judge.

Suit in the district court by the City of Corpus Christi against the Corpus Christi Gas Company and others, in which the district court entered an order restraining A. W. Cunningham, as Judge of the Criminal District Court of Nueces County, from proceeding further, on defendant's application for writ of mandamus directed against plaintiff, and from interfering with the jurisdiction of the district court until further orders, and from that order Cunningham and the gas company appeal. Affirmed.

Dougherty, Dougherty & Tarlton, of Beeville, and J. D. Williamson, of Waco, for appellants.

J. M. Taylor and Boone & Savage, all of Corpus Christi, for appellee.

FLY, C. J.

The history of this case is that on March 1, 1923, the city of Corpus Christi filed a petition in the district court, presided over by Hon. W. B. Hopkins, against the Corpus Christi Gas Company, the White Point Production Company, H. S. Bettes, and L. D. Prewitt, seeking an injunction to restrain them from tearing up the streets, from digging trenches along the same, and from laying pipes along and across the streets for the purpose of transporting natural gas from the mains of the White Point Production Company. A temporary restraining order was granted by Judge Hopkins and the cause set down for a hearing on March 3, 1923. The defendants in the suit filed an answer, and the Corpus Christi Gas Company set up a cross-action against the plaintiff, praying that the temporary injunction be set aside, that defendants be granted an injunction restraining the city of Corpus Christi from interfering with the gas company in laying its pipes along the streets, and that said city be ordered to grant a permit for laying mains and pipes to the gas company. Further hearing of the cause was set for March 9th, and other postponements had, up to and including one by operation of law on October 12, 1923. On January 11, 1924, in vacation, the gas company filed a paper seeking to dismiss its cross-action. The temporary writ was in effect all the time and is to this day.

On January 2, 1924, the Corpus Christi Gas Company presented its petition for a mandamus to Hon. A. W. Cunningham, judge of the criminal district court of Nueces county, in which it was sought to compel the city of Corpus Christi, to approve maps for extension of gas lines along and across the streets of the city. The judge of the criminal district court, in chambers, immediately issued a notice to the city and its council to appear on January 9, 1924, and show cause why a writ of mandamus should not be granted as prayed for by the gas company.

On the application of the appellee herein, the city of Corpus Christi, filed on February 4, 1924, a temporary writ of injunction was issued by Hon. W. B. Hopkins, restraining Hon. A. W. Cunningham, judge of the criminal district court, and the gas company, from proceeding with a hearing of the application of the gas company for a writ of mandamus directed against appellee, and the matter was set down for a hearing on January 11, 1924, and on that date, after a hearing, a temporary writ of injunction was issued restraining the said Cunningham from issuing any other order or taking any other action in and about said application for a mandamus, or the subject-matter thereof, and from in any manner interfering with the jurisdiction of the district court of Nueces county or the judge thereof, until further orders of said court at its regular term to convene in the city of Corpus Christi on February 18, 1924. This appeal is prosecuted by appellants, A. W. Cunningham and Corpus Christi Gas Company.

There was a suit pending in the district court of Nueces county, presided over by Hon. W. B. Hopkins, involving all the issues between the city and the gas company. That court had undoubtedly obtained full jurisdiction over the cause, and while that suit was pending another district court sought to interfere with the jurisdiction of the court which had obtained jurisdiction, and by its action sought to litigate the subject-matter of the suit and oust the original court of its jurisdiction. That court undoubtedly had the right and authority to protect its jurisdiction from the unlawful attempts to destroy it, whether made by judge, court, or corporation. Should it be admitted that the criminal district court of Nueces county has the power to perform the duties and exercise the powers of any other district court, still it had no authority to invade the jurisdiction of another court of co-ordinate and equal powers, and proceed to decide a cause pending on the latter's docket, and the court whose jurisdiction has been invaded has the power to restrain such unlawful procedure. As said by Mr. Joyce (volume 1, Injunctions. § 83):

"Courts of equity will not ordinarily interfere with other courts which have acquired control of the controversy, and are competent to afford relief. This rule is applied where courts of law and equity have concurrent jurisdiction of the res, and a court of law has first acquired jurisdiction of the controversy by an action brought therein."

In the case of Walker v. Howard, 10 Tex. Civ. App. 602, 30 S. W. 1091, the following decision by the Supreme Court of Ohio, in Ex parte Bushnell, 8 Ohio St. 601, is quoted with approval:

"The district court now has possession of the case and the parties to it, and has the legal power and capacity to hear and determine for itself the question of its own jurisdiction and right to act in the premises. The legal presumption in such cases always is that a court thus assuming to act will determine the question of its own jurisdiction correctly, until it has finally acted upon it. Hence it is a rule founded upon the comity which does, and, for the prevention of unpleasant collision, should always, subsist between judicial tribunals, that where a court of general jurisdiction, and legally competent to determine its own jurisdiction, has acquired prior jurisdiction, de facto, over person or subject-matter, no other court will interfere with or seek to arrest its action while the case is still pending and undetermined. This rule is sustained and supported by all the analogies of the law. * * * It is right in principle and preventive of unpleasant collision between different tribunals."

If the action of the district court of Nueces county, in the present case has not been satisfactory, the criminal district court of that county has no authority to review that action, or in any manner interfere with the jurisdiction of the district court, which is competent to pass on its own jurisdiction, and an aggrieved party cannot review its action through a writ of mandamus issued by a court in an attempt to grant relief, where it can only be obtained by an appeal to a higher court. A mandamus cannot take the place of an appeal or writ of error. Attempts to invade the legal and constitutional jurisdiction of courts of equal or even lower powers, through a writ of mandamus, or in any other way, are provocative of clashes between judicial tribunals, which should never occur, and not only contrary to precedent, but in the face of public policy. Ewing v. Cohen, 63 Tex. 482; Kidder v. Hall (Tex. Sup.) 251 S. W. 497; Stein v. Benedict, 83 Wis. 603, 53 N. W. 891.

There was no discontinuance of the cross-action according to the manner and form provided in article 1898, Rev. Stats. of Texas. The dismissal was not placed on the docket, nor the costs paid, but only a motion to dismiss filed, which was not acted on by the court. The cross-action is still pending. The motion was filed on the day that Judge Hopkins acted on the...