Gulf, C. & S. F. Ry. Co. v. Foster

• Decision Date: 05 January 1898
• Citation: 44 S.W. 198
• Court: Texas Court of Appeals
• Parties: GULF, C. & S. F. RY. CO. v. FOSTER et al. (HARRISON, Intervener).<SMALL><SUP>1</SUP></SMALL>

44 S.W. 198

GULF, C. & S. F. RY. CO. v. FOSTER et al. (HARRISON, Intervener).¹

Court of Civil Appeals of Texas.

January 5, 1898.

Appeal from district court, Austin county; H. Teichmueller, Judge.

Action by C. Foster against the Gulf, Colorado & Santa Fé Railway Company, in which J. M. Harrison intervened as a party plaintiff. From a judgment for plaintiffs, defendant appeals. Affirmed as to Foster. Reversed, and action dismissed, as to Harrison.

On the 4th day of April, 1896, the appellee C. Foster filed his petition in the district court of Austin county against, the appellant, in which he alleged that he was the owner, holding title in fee simple, and in possession, of a certain tract of land situated in Brazoria county, Tex., during the year 1895, and that he was on the 3d and 11th days of April, 1896, the owner and in possession of said land, upon which was then growing a pear and plum orchard, and that the appellant then at said times negligently set fire to, burned, and destroyed the pear and plum trees on the land comprising said orchard. The value of the trees alleged was $2,320, for which sum said appellee prayed damages. To this petition the appellant answered by a general demurrer and general denial. On December 21, 1896, after said answer was filed and the cause had been continued, said appellee filed his first amended original petition, in which he set up that he and J. M. Harrison, the other appellee, were the joint holders, holding in fee simple the tract of land in question, and had for a long time prior thereto been in possession of the same. This petition alleges that the land is situated in Brazoria county, Tex., and that the said Foster and Harrison were in possession of the same at the time said orchard trees were, by appellant's negligence, destroyed by fire; that the plaintiffs, C. Foster and J. M. Harrison, were thereby damaged in the value of the trees destroyed in the sum of $2,320. In this petition the appellee Foster prays for judgment, for the benefit of himself and J. M. Harrison, for the value of the trees destroyed. On the same day J. M. Harrison filed a plea in intervention, in which he alleged that he was the owner with plaintiff Foster, of an undivided one-half interest in the land described in plaintiff's first amended original petition, and was such owner at the time the fruit trees on the land were destroyed by fire. In this petition he adopts the first amended original petition of plaintiff C. Foster, and joins said plaintiff in his prayer for relief. To this first amended original petition and plea of intervention the appellant answered by exceptions to the jurisdiction and plea to the jurisdiction as follows: "Now comes the defendant, the Gulf, Colorado & Santa Fé Railway Company, and answering to the first amended original petition of plaintiff herein, and the plea in intervention of J. M. Harrison, demurs and excepts to the said petition, and to the jurisdiction of this court to entertain this cause, because it says that it appears from the face of the said petition and plea in intervention that this is a suit for damages to land; that the said land lies wholly in the county of Brazoria, state of Texas; and therefore defendant says that this court has no jurisdiction of this cause, and of this it prays the judgment of the court. For answer herein, defendant says: That this court has no jurisdiction to hear and determine this cause, because it says that the same is an action for damages to land, to wit, for the alleged negligent burning of certain pear and plum trees growing upon certain land alleged to be the property of plaintiffs, and that said land lies wholly within the county of Brazoria, state of Texas. Wherefore defendant says that this court has no jurisdiction to hear and determine this cause, and defendant here pleads its privilege to be sued only in said county of Brazoria. That defendant has never heretofore answered in this suit, in so far as it is a joint suit by plaintiffs, Foster and Harrison, or in so far as it is a suit or demand by the said Harrison himself. That it has in no way waived its right to be sued in the county of Brazoria, where the said land lies, by the said Harrison suing alone, or by the said Foster and Harrison suing jointly, and that it has not consented or agreed to the institution of this suit in the county of Austin." This plea was duly verified. There was a hearing on the exception and plea to the jurisdiction before the court prior to the trial of the cause on its merits, and both the exception and plea were overruled. To the rulings of the court, appellant took the following bill of exceptions: "Be it remembered that after the plaintiffs herein had filed their first amended original petition, on the 21st day of December, 1896, and after the plaintiff J. M. Harrison had filed his plea in intervention, on the said 21st day of December, 1896, and after the defendant had filed its plea to the jurisdiction and first amended original answer, as shown by the record herein, on January 5, 1897, on, to wit, January 18, 1897, came on to be heard the defendant's exceptions and demurrer to the jurisdiction, and its plea to the jurisdiction, as shown by the said first amended original answer, filed on the 5th day of January, 1897; and it was then and there admitted that the land on which the plaintiffs' trees were growing at the time of the burn were situated in Brazoria county, Texas, and that the defendant had not in any way waived its pleas of privilege and to the jurisdiction, if any it had, in this suit, in so far as it was a suit by J. M. Harrison, joint owner and intervener, nor in so far as it was a joint suit by C. Foster and J. M. Harrison as joint owners; but it was admitted that the defendant's railroad did run through the county of Austin, and that, prior to the filing of the amendment bringing in J. M. Harrison as plaintiff, defendant had answered to the merits, and not in limine to the original petition of C. Foster, suing alone and alleging ownership in himself, and had...