Dunn v. St. Louis Southwestern Ry. Co. of Texas

• Decision Date: 01 July 1905
• Citation: 88 S.W. 532
• Parties: DUNN et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.
• Court: Texas Court of Appeals

88 S.W. 532

DUNN et al. v. ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS et al.

Court of Civil Appeals of Texas.

July 1, 1905.

Original application by Bascom H. Dunn and others against the St. Louis Southwestern Railway Company of Texas and others for writs of prohibition and mandamus. Dismissed.

Jas. S. Davis, for applicants.

SPEER, J.

This is an original application to this court for a writ of prohibition restraining the St. Louis Southwestern and a number of other railroad companies from claiming and asserting any right or rights under a certain restraining order issued by the Honorable Irby Dunklin, judge of the Forty-Eighth Judicial District, in a certain cause pending in his court wherein the said railway companies sought to restrain these applicants from buying and selling certain railroad tickets issued by the railroad companies; and for a writ of mandamus against the district judge to compel him "to proceed to trial upon the pleadings and answer of the defendants therein and upon the agreed and undisputed facts in said case, and to render such judgment therein as the law would warrant." The status of the case, as shown by the application to this court, is that the railway companies mentioned instituted their suit seeking the restraining order as aforesaid, to which an answer consisting of demurrers and pleas was duly filed. The cause came on regularly to be heard, and the restraining order prayed for was regularly issued by the district court. In due time these applicants filed their motion for a new trial, which has never been disposed of, and the cause is still pending in the district court of Tarrant county. There is no pretense that the honorable district judge refuses to hear or determine the said motion or finally to dispose of the case.

The first question with which we are confronted is whether or not we have jurisdiction to entertain this application. Necessarily, the jurisdiction of any court is limited by the terms of the Constitution and statutes creating it, and the powers which it may lawfully exercise are those only which are expressly conferred upon it, or those which are reasonably incident to the powers expressly conferred. Section 6 of article 5 of the Constitution, creating the Courts of Civil Appeals, provides: "Said Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. * * * Said courts shall have such other jurisdiction, original and appellate, as may be prescribed by law." In pursuance of the authority thus conferred, the Legislature, in articles 996, 997, 998, 999, and 1000, of Sayles' Ann. Civ. St. 1897, has defined the powers of this court. The only articles necessary to quote are article 997, which provides: "The said courts and the judges thereof shall have power to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts," and article 1000, which is: "The said courts or any judge thereof, in vacation, may issue the writ of mandamus to compel a judge of the district court to proceed to trial and judgment in a cause, agreeably to the principles and usages of law, returnable on or before the first day of the next term or during the session of the same, or before any judges of said court, as the nature of the case may require." Since the writs herein prayed for are not sought in aid of the jurisdiction of this court over this controversy, the article first...