Gibbons v. Ross

• Decision Date: 18 March 1914
• Docket Number: (No. 6704.)
• Citation: 167 S.W. 17
• Parties: GIBBONS v. ROSS et al.
• Court: Texas Court of Appeals

167 S.W. 17

GIBBONS v. ROSS et al.

(No. 6704.)

Court of Civil Appeals of Texas. Galveston.

March 18, 1914.

On Motion for Rehearing May 4, 1914.

Appeal from District Court, Galveston County; Robert G. Street, Judge.

Trespass to try title by J. T. Gibbons against J. H. Ross and others. From an order of the district court refusing plaintiff's prayer for a temporary injunction, plaintiff appeals. Reversed on rehearing, and judgment granting injunction rendered.

Hutcheson & Hutcheson, of Houston, for appellant. Maco & Minor Stewart, of Galveston, for appellees.

PLEASANTS, C. J.

This appeal is from an order of the district court of Galveston county refusing appellant's prayer for a temporary injunction in a suit of trespass to try title and to remove cloud from title brought by appellant against the appellees. The land involved in the suit is described in the petition as a tract of "32 acres more or less, known and designated as lot 23 in subdivision C of the S. F. Austin and M. Muldoon grants of land in Galveston county, Texas, according to plat prepared by R. W. Lutterell for J. C. League in December, 1893." The defendants in the suit are J. H. Ross, Ira Bratton, and R. McGregor. In addition to the usual allegations in a suit of trespass to try title, the petition specially alleges facts relied on by plaintiff to show that the title asserted by defendants, who claim under a common source, is invalid; the facts so alleged being sufficient to defeat defendants' claim of title. The allegations of the petition, upon which the temporary injunction is sought, and the prayer for injunction are as follows:

"Plaintiff further represents to the court: That on or about the 5th day of August, 1913, the defendant J. H. Ross filed suit in forcible entry and detainer in the justice court of Galveston county, precinct No. 6, cause No. 198, on the docket of said court, wherein he complained against A. A. Kresse, of Galveston county, Tex., and sought possession of the aforesaid tract of 32 acres. That the defendant in that suit is, and was at the time of the institution of said suit for forcible entry and detainer, the tenant of this plaintiff under a lease contract of date July 15, 1913, said lease embracing the 32-acre tract herein sued for, and being for a period of 2 years from said date, and that during the pendency of said suit another suit of forcible entry and detainer involving the above property was filed against the said A. A. Kresse, tenant of the defendant, by Ira Bratton, as tenant of the defendant J. H. Ross, said suit being filed in the justice court of Galveston county, precinct No. 6, on or about the 1st day of October, 1913, and being cause No. 201 on the docket of said court. That the suit last mentioned was tried in the justice court, and from there appealed to the county court of Galveston county, Tex., and that judgment was rendered in said suit against the said A. A. Kresse, and in favor of the said Ira Bratton, for the possession of the 32-acre tract herein sued for, and that no appeal lies from said judgment of the county court by reason of the statutes of this state governing the remedy of forcible entry and detainer, and that the said Ira Bratton is about to secure the issuance of a writ of restitution in said cause to dispossess the said A. A. Kresse, tenant of this plaintiff, and this plaintiff now states to the court that he has good record title to said entire 32-acre tract and is the lawful owner thereof, and that none of the defendants have any title or right of possession whatever thereto, so that plaintiff's tenant is legally entitled to the possession thereof, but that, under the law of forcible entry and detainer, this plaintiff's title cannot be introduced in evidence for the purpose of showing the right of said A. A. Kresse to possession, and this plaintiff cannot intervene in such suits and assert his title, so this plaintiff is without remedy in the event his tenant be dispossessed therefrom, and his tenant would have a right of action against him for damages if so dispossessed, and the said J. H. Ross and Ira Bratton are insolvent, and could not respond to this plaintiff in damages, although the said A. A. Kresse has taken possession of the said 32-acre tract under his lease with this plaintiff, and has constructed on said tract valuable improvements, including two silos for the storing of grain and other products, and is now engaged in the business of running a dairy on said premises, and in the cultivation and use of same for agricultural purposes, especially in the growing crops for sale on the market, as well as for the use of his family and his business. That, should the said Kresse be dispossessed at this time, he would be deprived of the opportunity of running his dairy business and growing his crops before this plaintiff could recover the possession of said land in this proceeding of trespass to try title, and that this is the season of the year in which it is necessary to plow the ground and make same ready for the growing crops, all of which plaintiff's tenant would be unable to do, were he now dispossessed, so that plaintiff's tenant would suffer irreparable injury, as would this plaintiff himself, should said writ of restitution issue under the judgment in said action of forcible entry and detainer, and same therefore should not issue, and plaintiff now calls upon the equity jurisdiction of this court for the issuance of an injunction restraining the said Ira Bratton and those under whom he claims from procuring or directing the issuance of a writ of restitution in said cause.

"Plaintiff further represents to the court: That the said Ira Bratton is now occupying a house located on the said 32-acre tract, and is asserting some sort of claim to 5 acres immediately surrounding said house, and is thereby interfering with the possession and use of plaintiff's tenant, and that he will continue to do so unless he be enjoined therefrom by order of this honorable court. That, because of the occupancy of said house by the said Bratton, plaintiff's tenant has been compelled to occupy and live in the upper story of the barn which shelters his dairy cows, and that plaintiff is unable to deliver to him the complete possession which he agreed to do under his contract, and will be unable to do so as long as the said Bratton continues to occupy the house and five acres surrounding same, but that plaintiff has no other remedy than to appeal to the equity jurisdiction of this honorable court to issue an injunction, directing the said Ira Bratton to cease the occupancy and use of said house, and its adjoining premises, and to in no way interfere further with the possession and use of the said A. A. Kresse to said entire 32-acre tract of land because, as hereinbefore set out, plaintiff had no right to set up his title in the suit of forcible entry and detainer brought by the said Bratton against the said Kresse, and so defeat the wrongful possession of the said Bratton.

"Wherefore plaintiff prays the court that an injunction issue forthwith against the said Ira Bratton, and those under whom he claims, enjoining them from procuring and directing the issuance of a writ of restitution under the judgment in said case of forcible entry and detainer, styled Ira Bratton v. A. A. Kresse, until this case is fully determined, directing the said Ira Bratton to cease occupancy of the premises embraced within said 32-acre tract now occupied and used by him, and that he in no manner interfere with the possession and use of the said 32-acre tract by the said A. A. Kresse."

This petition, which was sworn to by plaintiff, was presented to Hon. R. G. Street, judge of the district court of Galveston, on February 2, 1914. Upon consideration of the petition the judge granted a temporary restraining order enjoining the defendants from in any way disturbing or interfering with plaintiff's possession of the premises pending a hearing of the application for temporary injunction, which hearing was set for February 9, 1914.

On the day set for the hearing, the defendants appeared and filed answer containing general and special exceptions to plaintiff's petition, and special denials of most of the material allegations of the petition. They claim that the title to the land is in the defendant Ross, and specially deny under oath that plaintiff was in possession thereof and was ejected by defendants on July 1, 1913, as alleged in his petition. They aver in substance that defendant Ira Bratton was in possession of the land, holding same under a lease from the owner thereof, and, while so holding, plaintiff's tenant Kresse forcibly entered upon and took possession of a portion of said land; that said Bratton instituted a suit of forcible entry and detainer against Kresse and obtained judgment thereon, as alleged in plaintiff's petition. They specially deny that the said Bratton or the defendant Ross is insolvent, as alleged by plaintiff, and aver that Bratton is now the tenant of defendant Ross, who is the owner of said premises.

The application was heard upon the petition and answer and supporting affidavits introduced in evidence. Upon the hearing the court refused to grant plaintiff's application for temporary injunction, and dissolved the temporary restraining order theretofore granted. From this order plaintiff appealed to this court.

Upon application of plaintiff, after the...