Haginas v. Malbis Memorial Foundation

• Decision Date: 28 September 1961
• Docket Number: No. 13803,13803
• Citation: 349 S.W.2d 957
• Parties: P. J. HAGINAS et ux., Appellants, v. MALBIS MEMORIAL FOUNDATION, Appellee.
• Court: Texas Court of Appeals

Page 957

349 S.W.2d 957

P. J. HAGINAS et ux., Appellants, v. MALBIS MEMORIAL FOUNDATION, Appellee.

No. 13803.

Court of Civil Appeals of Texas, Houston.

Sept. 28, 1961.

Rehearing Denied Oct. 19, 1961.

Ellis F. Morris, Houston, for appellants.

Harry W. Patterson, Robert I. Peeples, Houston, Bracewell, Reynolds & Patterson, Houston, of counsel, for appellee.

BELL, Chief Justice.

Appellee recovered judgment in both the Justice Court and the County Court at Law, in a forcible detainer suit, against appellant Haginas for possession of certain premises that he had occupied as a tenant of appellee, and also recovered a judgment against him in the County Court at Law for $2,400 which represented damages accruing to appellee pending appeal because of Haginas' withholding possession during appeal and for attorney's fees and other expenses incurred in posecuting the appeal in the County Court at Law.

Appellants after the judgment became final filed a motion in the case, denominating it a Bill of Review, seeking to set aside the judgment insofar as it awarded damages, they taking the position that the amount in controversy exceeded the jurisdiction of the County Court at Law, and in the alternative they asked that the judgment be reduced to $1,000. A Bill of Review is really a new suit and should be brought as such. However, no question was raised about the manner of raising the questions by motion and the parties treated the motion as properly filed. The court therefore had jurisdiction the same as if it had been filed as a new suit.

The appellee filed its amended petition in the County Court at Law just a short time before trial and for the first time asked for damages for the wrongful withholding of possession during the appeal in the amount of $5,880 and for the expense of prosecuting the suit in the County Court in the amount of $1,500.

Appellants take the position that the court did not have jurisdiction of the suit for damages and expenses because Article V, Section 16 of the Constitution of the State of Texas, Vernon's Ann.St., provides the maximum jurisdiction of the County Court (or the comparable statutory court, the County Court at Law) is $1,000 exclusive of interest and costs. Even they say if the court had jurisdiction, it could not render judgment for an amount in excess of $1,000.

We are unable to agree with appellants.

Jurisdiction to recover possession of property from a tenant is vested by Article 3973 Vernon's Ann.Tex.St.1925. The proceeding is by a forcible detainer suit. The primary object of such a suit is the recovery of possession. The primary issue is the right to possession. There may be joined in said suit a suit to recover delinquent rents payable under the contract if the amount is within the jurisdiction of the Justice Court. Rule 738, Texas Rules of Civil Procedure. However, this is rent as such and not damages for wrongful withholding of the premises. This is all of the relief that may be given in the Justice Court.

Rule 749, T.R.C.P. provides for an appeal by the losing party in the Justice Court to the County Court, and an appeal bond is required conditioned that the appeal will be prosecuted with effect and that appellant in the County Court will pay all costs and damages that may be adjudged the parties in Rule 752, T.R.C.P. provides the parties in the County Court may plead and prove damages suffered for the withholding or defending of the premises during the pendency of the appeal and also recover necessary and reasonable expenses incurred in prosecuting or defending the cause in the County Court. No amount is stated as a limit that may be recovered. This rule was adopted by our Supreme Court by bringing forward the substance of Article 3990, Revised Civil Statutes, 1925.

There have been no cases cited, and we have found none, that have passed on the validity of the statute, or rule, or have expressly noticed whether the County Court, under the rule or statu...