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

• Decision Date: 04 April 1896
• Citation: 35 S.W. 331
• Parties: GULF, C. & S. F. RY. CO. v. BLANKENBECKLER et al.
• Court: Texas Court of Appeals

35 S.W. 331

GULF, C. & S. F. RY. CO. v. BLANKENBECKLER et al.

Court of Civil Appeals of Texas.

April 4, 1896.

Appeal from district court, Bosque county; J. M. Hall, Judge.

Action by the Gulf, Colorado & Santa Fé Railway Company against J. L. Blankenbeckler and others to enjoin the enforcement of a judgment. A perpetual injunction was granted, but judgment was rendered for defendant Blankenbeckler on his plea in reconvention. Plaintiff appeals, and said defendant files cross assignments of error. Affirmed on the cross bill, and reversed on the main bill.

J. W. Terry and Chas. K. Lee, for appellant. Wm. M. Knight, for appellees.

HUNTER, J.

The appellant on the 10th day of October, 1893, filed its petition in the district court of Bosque county against appellees Blankenbeckler, and J. V. Jarrett, justice of the peace, and R. T. Vaughn, constable, alleging, in substance, that on the 27th day of July, 1893, Blankenbeckler had obtained a judgment before said justice of the peace against it for $16, for the value of a cow killed by it; that said judgment was void, because of citation not having been served for full ten days before judgment; that, more than five days having elapsed since said void judgment was rendered, it was then too late to move for a new trial; and on account of the amount involved in said suit, and the amount of the said judgment being less than $20, petitioner had no redress or remedy by appeal. The petition further shows that execution had been issued on said judgment by the justice of the peace, at the instance of appellee, and that the constable, Vaughn, was about to levy it on appellant's property, and prayed for a writ of injunction to restrain appellees from such action, and for an order and decree perpetually enjoining the appellees, and each of them, from further proceeding under said execution, and from any further attempts to enforce said void judgment. Blankenbeckler pleaded a general demurrer and a general denial, but admitted on the trial the invalidity of the judgment. He also reconvened, claiming $25 damages for killing his cow, alleging negligence by running the train at a high and dangerous rate of speed, and failing to ring the bell or blow the whistle, that the place where the cow was killed was within 80 rods of a public crossing, and that the bell was not kept ringing, nor the whistle kept blowing, until said road was passed, as required by statute. Appellee moved to dissolve the injunction, on the grounds (1) that the amount of the judgment in the justice's court being, as shown on the face of the petition, for less than $20, to wit, $16, the district court had no jurisdiction; (2) because plaintiff's petition states no cause of action against the defendant entitling it to an injunction. This motion was overruled by the court, to which defendant excepted. He also filed a general demurrer to appellant's petition, which was overruled by the court, and to which ruling he likewise excepted, and filed cross assignments of error on these rulings, which, as they raise a question of jurisdiction, must be first considered.

There is no appeal to the county or other court from the judgment of a justice of the peace, in cases where the judgment rendered or amount in controversy, exclusive of costs, is less than $20. Rev. St. 1895, art. 1158 (Rev. St. 1879, art. 1165). Nor has the county court jurisdiction to issue the writ of certiorari in such cases. Rev. St. 1895, art. 1675 (Rev. St. 1879, art. 1642). Section 8, art. 5, of the constitution of Texas, as amended September 22, 1891, fixes and prescribes the jurisdiction of the district courts, specifying the various matters over which they are given jurisdiction, in one clause of which the power to issue the writ of injunction is expressly conferred, without specifying any limitation as to amount involved in the suit or subject-matter. This clause of this section of the constitution, so far as it applies to injunctions, is substantially the same as contained in the same section and article of the constitution of 1876, which in Anderson Co. v. Kennedy, 58 Tex. 621, was construed by our supreme court to confer jurisdiction on the district court to grant the writ enjoining the county of Anderson and its officers from levying and collecting a tax of less than $100; and the supreme court in that case puts the jurisdiction on the ground that the power to issue the writ is general, and not confined to cases where jurisdiction has been given over the subject-matter, or fixed by the amount in controversy. See, also, Railway Co. v. Rawlins, 80 Tex. 579, 16 S. W. 430; Railway Co. v. King, 80 Tex. 681, 16 S. W. 641; Alexander v. Holt, 59 Tex. 205; Railway Co. v. Dowe, 70 Tex. 3, 6 S. W. 790; Stein v. Frieberg, 64 Tex. 271. It may be that the county court, under a similar clause in section 16 of article 5, has also jurisdiction to grant this writ. Brown v. Young, 2 Posey, Unrep. Cas. 335; Dean v. State, 88 Tex. 290, 30 S. W. 1047; Rev. St. 1895, art. 2989 (Rev. St. 1879, art. 2873). This, however, we do not mean to decide. We are of opinion that, if it did, the jurisdiction would be concurrent, and that the inserting of said clause in section 16 did not in any manner deprive the district court of its power in such cases. We are therefore of opinion that appellee's cross assignments of error are not well taken, and that the district court had jurisdiction to issue the writ and try the cause.

The case was tried by the court without a jury, and his conclusions of fact and of law are as follows: "(1) The defendant's cow was killed at Valley Mills, Tex., on the 17th day of June, 1893, by being struck by an engine of the plaintiff, on plaintiff's railway. (2) The market value of the animal at the time was $16. (3) The plaintiff's track was not fenced where the cow was struck, and the place was not on the town plat, although it was between the south ends of two switches, one of which was on each side of the main track. (4) Blankenbeckler brought a suit in the justice court at Valley Mills for the value of the cow, and obtained a judgment for $16 and costs; but this court finds that that judgment was void, because full 10 days' service had not been had on the railway company before the said judgment was rendered against it. Law: The court concludes that the judgment of the justice court should be perpetually enjoined; but, no reasons being shown why the company had not or could not fence its track at the place where the animal was killed (...