Dazey v. Pennington

• Decision Date: 26 April 1895
• Citation: Dazey v. Pennington, 31 S.W. 312, 10 Tex. Civ. App. 326 (Tex. App. 1895)
• Parties: DAZEY v. PENNINGTON et al.
• Court: Texas Court of Appeals

31 S.W. 312

DAZEY v. PENNINGTON et al.

Court of Civil Appeals of Texas.

April 26, 1895.

Appeal from Tarrant county court; Robert G. Johnson, Judge.

Proceedings in the nature of a bill of review by J. N. Dazey against J. H. W. and J. L. Pennington to set aside a former order of the county court. From a judgment of the county court, denying such relief, plaintiff appeals. Reversed.

F. M. Brantley, for appellant.

TARLTON, C. J.

On June 21, 1892, the appellant, Dazey, as the landlord of the appellees, filed in the justice's court his affidavit and his bond for a distress warrant, and secured the issuance of a writ in accordance therewith. The process was returned by the justice to the county court of Tarrant county. On September 3, 1892, the plaintiff, Dazey, filed in the county court his original petition in the cause, in which he asserted a claim for $1,035 for rents due, and prayed judgment accordingly. The writ was levied by the officer upon certain property exceeding in value the sum of $1,000. Pending this proceeding, a portion of this property was sold as perishable effects, by order of the court. On October 7, 1892, on motion of the defendants, on the ground that "no petition was filed by plaintiff as required by law," the court quashed the distress proceedings, and dismissed the cause, ordering that, in case no appeal should be perfected within the time prescribed by law, the property distrained, including the proceeds in the hands of the officers of the court, shall be turned over to the defendants. The court, in its judgment, granted the plaintiff leave to withdraw the papers filed, and to refile the same in the district court. Of this leave the plaintiff availed himself, and the cause was accordingly docketed in the district court of Tarrant county, where it seems to be yet pending. On January 26, 1893, the appellant, Dazey, as plaintiff, instituted this proceeding against the appellees as defendants in the nature of a bill of review, seeking to have set aside the judgment of the court entered October 7, 1892, quashing the distress writ and the proceedings sued out as above described. This relief the court refused to grant, and hence this appeal.

We hold:

1. The jurisdiction of the county court was fixed by the amount of the demand asserted by the plaintiff. Lawson v. Lynch (Tex. Civ. App.) 29 S. W. 1128.

2. As this exceeded the sum of $1,000, the county court was without jurisdiction to quash the distress proceedings and to order...