Gulf, T. & W. Ry. Co. v. Lunn

• Decision Date: 09 November 1911
• Citation: 141 S.W. 538
• Court: Texas Court of Appeals
• Parties: GULF, T. & W. RY. CO. v. LUNN et al.<SMALL><SUP>†</SUP></SMALL>

141 S.W. 538

GULF, T. & W. RY. CO. v. LUNN et al.^†

Court of Civil Appeals of Texas. Texarkana.

November 9, 1911.

Rehearing Denied December 7, 1911.

Appeal from District Court, Jack County; J. W. Patterson, Judge.

Suit by the Gulf, Texas & Western Railway Company against Earl Lunn and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Sporer & McClure and Ben B. Cain, for appellant. E. W. Nicholson, for appellees.

HODGES, J.

The appellant instituted this suit in the district court of Jack county to restrain the enforcement of a personal judgment rendered against it in a justice court in favor of the appellee Earl Lunn. The petition alleges, in substance, that on the 10th day of May, 1910, the appellee Lunn filed a suit against it upon an account, or claim for wages, amounting to $3.50, claiming that the wages were due for personal services rendered, and in addition thereto for $10 attorney's fee. Citation was duly issued and served upon the appellant. On the 12th day of May, 1910, the account for $3.50 was paid in full by the appellant to Lunn, and the latter's receipt taken therefor. On the 28th day of June thereafter the case was called for trial by R. S. Blair, the justice of the peace presiding over the court in which the suit was pending, and the following judgment was entered: "This day this cause was regularly called for trial, and the plaintiff appeared by counsel and announced ready for trial; and the defendant also appeared by counsel and announced ready for trial; and a jury having been waived by both parties hereto, and the matters of things and fact, as well as of law, having been submitted to the court, and the court having heard all of the evidence and the argument of counsel, and having been fully advised in the premises, is of the opinion that the law is with the plaintiff and against the defendant, and that the plaintiff ought to recover of the defendant as hereinafter shown; and it satisfactorily appearing to the court, from the evidence herein, that this is a suit by the plaintiff against the defendant for the sum of $3.50 for labor done and performed by the plaintiff for the defendant and for his reasonable attorney fees in the sum of $10; and it further appearing to the court from the evidence herein that after the said suit was filed and citation issued and served upon the defendant the said defendant paid to the plaintiff the said sum of $3.50 as sued for, and that no further judgment should be recorded for the plaintiff against the defendant for the said sum of $3.50 by reason of the facts above stated; and it further appearing to the court from the evidence herein that the plaintiff, Earl Lunn, duly and regularly employed E. W. Nicholson, Esq., a practicing lawyer of the Jacksboro Bar, to bring and prosecute for him this suit against said defendant: It is therefore adjudged, decreed, and considered by the court that the plaintiff, Earl Lunn, do have and recover of and from the defendant, the Gulf, Texas & Western Railway Company, the sum of $10 for his attorney fees herein to be taxed as part of the costs herein, and that said sum of $10 be paid as soon as collected to the said E. W. Nicholson, plaintiff's attorney herein, as aforesaid; and further that the plaintiff Earl Lunn do have and recover of and from the defendant, the Gulf, Texas & Western Railway Company, all costs in this behalf expended, and for all of which execution may issue. [Signed] R. S. Blair, J. P."

It is further alleged that upon the call of the case for trial the following evidence was offered: The receipt given by Lunn at the time the account was paid. E. W. Nicholson, counsel for the plaintiff, testified as to the presentation of the account, the length of time during which it remained unpaid, and the demands for its payment. He also offered testimony to prove that $10 was a reasonable attorney's fee in such a case. The defendant offered testimony tending to show that Lunn had never worked for it; that it did not owe him anything, but that the debt claimed was due from the Scranton Construction Company, and the delay in the payment by that company was caused by an oversight in making out the accounts and the inability to locate Lunn and pay him the money; that the money was paid upon the first opportunity afforded. It is further alleged that a motion for a new trial was filed in the justice court and overruled. The petition concludes with the following prayer: "That the amount of said judgment is such that the plaintiff cannot appeal from the same and is without any remedy at law, and will be deprived of his legal rights and suffer gross injustice and irreparable injury unless this honorable court will interpose to prevent same by the issuance of its most gracious writ of injunction. Wherefore plaintiff prays that your honor issue your most gracious writ of injunction prohibiting and enjoining the said Earl Lunn, his agents, attorneys, and all persons representing or pretending to represent him, and also the said R. S. Blair, from suing out and issuing an execution based upon said judgment, and from levying and executing the execution already issued; and that on final hearing hereof that such injunction be made perpetual; and also that it recover all costs in this behalf expended, and for all such other and further relief, either in law or equity, as may seem meet and proper."

On the 28th day of July following, the district judge granted the temporary restraining order prayed for. At the next succeeding term of the court the appellees, plaintiffs below, answered by a motion to dismiss the cause for various reasons, among which was that the petition for the writ disclosed no equity upon its face. This motion was sustained by the court, and the cause dismissed. From that judgment this appeal is prosecuted.

The motion to dismiss must be regarded as in the nature of a demurrer, and for the purpose of testing its legal sufficiency admits the truth of all the material averments in the petition. Floyd v. Turner, 23 Tex. 292.

Appellant insists that under the facts stated in its petition the justice court was, for two reasons, without power to render the judgment against which relief is here sought: First, because the plaintiff in the justice court had no right to and did not "obtain a judgment for the full amount of the claim sued for;" second, because the statute by virtue of which the attorney's fees were sought and recovered was unconstitutional and void. The petition does not set out or state the substance of the pleadings of either party in the justice court, and we are left to infer that the plaintiff there relied upon the statute referred to for his right to recover the attorney's fees claimed.

In view of the fact that the appellant has predicated its only assignment of error upon that assumption, it cannot here complain of any prejudicial consequences following the indulgence of such an inference. The statute referred to is as follows: "That hereafter any person in this state, having a valid, bona fide claim against any person or corporation doing business in this state, for personal services rendered or for labor done, or for material furnished, or for overcharges on freight or express, or for any claim for lost or damaged freight, or for stock killed or injured by such person or corporation its agents or employés, may present the same to such person or corporation or to any duly authorized agent thereof, in...