Emerson v. Emerson

• Decision Date: 01 April 1896
• Citation: 35 S.W. 425
• Parties: EMERSON v. EMERSON.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

35 S.W. 425

EMERSON v. EMERSON.¹

Court of Civil Appeals of Texas.

April 1, 1896.

Appeal from district court, Bexar county; S. G. Newton, Judge.

Action by J. M. Emerson, Sr., against Emily A Emerson. From a judgment for defendant, plaintiff appeals. Affirmed.

Geo. C. Altgelt, for appellant. Franklin & Cobbs, for appellee.

FLY, J.

This is a case of forcible entry and detainer, which originated in the justice's court of precinct No. 1 of Bexar county. The complaint alleged that on or about November 2, 1894, appellant was in peaceable and lawful possession of a certain house and lot in San Antonio, known as "Premises No. 309," on the west side of Soledad street, and running through to Acequia street or Main avenue, bounded north by property of Mrs. Laager, south by property of B. Callaghan and R. Probandt, east by Soledad street, and west by Acequia street or Main avenue; that appellant, by his tenant, Mrs. Finucane, held possession of said premises on said date, when appellee entered into and upon said premises without authority, and with force and arms ejected appellant's tenant therefrom, and forcibly held the same to the exclusion of appellant. Appellee answered, setting up a suit in the district court, involving the right of possession of appellant in the premises, and pleading not guilty, and that the premises were the homestead of appellee, and that she had the lawful right to the possession. There was a judgment for appellee in the justice's court, and on appeal to the district court the same result followed. No proof was introduced in support of that part of the answer setting up the pendency of a suit in the district court of Bexar county involving the matters in dispute in this case. There was no judgment for money in any sum.

Appellee has filed a motion to dismiss the appeal in this case, on the ground that an appeal does not lie in forcible entry and detainer cases, except where the judgment shall be for damages in an amount exceeding $100. That this would hold good if the case had been tried in the county court is undoubtedly true. Sayles' Civ. St. art. 2461. The jurisdiction of the county court of Bexar county in civil cases has, however, been vested in the district court of that county; and, under the constitution, the jurisdiction of the courts of civil appeals extends to all civil cases of which the district or county courts have original or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Const. art. 5, § 6; Rev. St. 1895, p. 23. Under this constitutional provision, a law was passed by the legislature that the appellate jurisdiction of the courts of civil appeals, among other things, should extend to civil cases within the limits of the respective districts of which the district courts have original or appellate jurisdiction. Rev. St. 1895, art. 996 That this statute would include forcible entry and detainer cases, as well as any other of which district courts have original or appellate jurisdiction, seems clear. Cadwallader v. Lovece (Tex. Civ. App.) 29 S. W. 666. It may seem inconsistent to permit appeals from the district courts to courts of civil appeals in forcible entry and detainer cases, when the right of appeal is expressly denied in the same class of cases from the county court, but not more so than to permit all cases that are appealed from the justices' courts to the district courts to be appealed to the courts of civil appeals, and to deny the right in cases appealed from justices' courts to county courts where the amount in controversy does not exceed $100. The argument against an appeal in the latter class of cases from the district court would have fully as much strength as in forcible entry and detainer cases, and yet cases are constantly being carried by appeal to the courts of civil appeals from district courts which could not have been so appealed had they been tried in the county court. It may be that the legislature should remove such inconsistencies and inequalities from the statutes, but, until this is done, courts must enforce them as they find them. We hold that the case is properly before this court.

The entire briefs of both appellants and appellees are devoted to questions of evidence and charges relating to the homestead rights of appellee. Indeed, this was the theory upon which the trial in the district court proceeded, and the charge makes the verdict turn upon whether or not appellee had abandoned her homestead when she left Texas. The issues made by the complaint were not presented to the jury. The statute providing for actions of forcible entry and detainer has reference to three classes of cases. One is where any person shall make an entry into any lands, tenements, or other real property, except in cases where entry is given by law; another class is where such entry is...