Hill v. Brown, (No. 8491.)<SMALL><SUP>*</SUP></SMALL>
| Decision Date | 06 November 1920 |
| Docket Number | (No. 8491.)<SMALL><SUP>*</SUP></SMALL> |
| Parties | HILL et al. v. BROWN et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Dallas County; E. B. Muse, Judge.
Suit by Mrs. M. V. Brown and husband against Mrs. J. H. Hill and husband, for a mandatory injunction. Judgment for plaintiffs, and defendants appeal. Affirmed.
John White, of Dallas, for appellants.
Muse & Muse and Lee Richardson, all of Dallas, for appellees.
The appellee Mrs. M. V. Brown, joined by her husband, M. V. Brown, brought this suit against the appellants, Mrs. J. H. Hill and her husband, J. H. Hill, alleging, in substance, that the appellee Mrs. M. V. Brown was the owner as her separate property and entitled to the possession of the lot described in the petition. That situated upon the lot is a large and commodious residence, outhouses, and improvements, which was and is the homestead of the appellees; that appellants have unlawfully entered upon and taken possession of said property, and wrongfully withhold the possession thereof from appellees; that the reasonable market value of said premises is the sum of $15,000, and the reasonable rental value thereof is the sum of $125 per month. Appellees further allege that the appellants are not in possession of said premises under or by virtue of any contract, consent, or permission, but are naked trespassers thereon; that appellees have demanded possession of the premises, and appellants have refused to surrender possession, and announce their purpose to continue to hold the same, although they are in illegal possession thereof. Appellees allege that on or about the 1st day of August, 1916, the plaintiffs rented said premises to one Mrs. Etta Hodnett, a feme sole, for the term of one month, and by the month thereafter, the rental therefor being payable in advance on the 1st of the month in the sum of $40 per month; that the said Mrs. Hodnett, on or about March 1, 1919, surrendered the possession of the said premises to the defendants herein upon a subrental contract, as plaintiffs charge, similar to that above alleged as held with said Mrs. Hodnett, viz. a monthly rental payable in advance; that the same was without any written consent of the plaintiffs, but that shortly thereafter the plaintiffs consented to the defendants renting said property by the month for the rental of $50 in lieu of the $40 per month to be paid therefor, such rental of said premises by the defendants being by the month; that prior to January 1, 1920, the plaintiffs terminated said rental contract with the defendants, and demanded possession of said premises, and refused to accept the rent for January, 1920, and upon the refusal of the defendants to surrender possession on or about January 5, 1920, plaintiffs made written demand on defendants for the possession of said premises, and, defendants refusing to surrender possession, plaintiffs instituted a forcible entry and detainer suit in the justice court of precinct No. 1, Dallas county, Tex., to recover possession of said premises; that a trial of said cause was had on or about January 23, 1920, upon a jury being impaneled to hear said cause; that the defendant Mrs. Hill testified upon said trial, in substance, that the plaintiff Mrs. Brown had made a verbal contract with her in May, 1919, in which she agreed to let her, Mrs. Hill, have the house from June 1, 1919, to June 1, 1920, for $50 per month, averring that she, Mrs. Hill, had such conversation with Mrs. Brown in the presence of one Mrs. Bailey, a daughter of the plaintiff Mrs. Brown; that while as a matter of fact no such agreement had been made, Mrs. Bailey being absent and the issue thus made resting upon the assertion by said Mrs. Hill and denied by Mrs. Brown, the jury upon such testimony found a verdict for the defendants in raid forcible entry and detainer suit; that the plaintiffs acquiesced in said verdict without appeal, and permitted the defendants to remain in said premises to June 1, 1920, advising them that on said date they would require the possession of said premises; that on or about the 1st of May, 1920, the plaintiffs served a written notice and demand upon defendants for the possession of said premises on June 1, 1920; that on or about the last days of May, 1920, the defendant J. H. Hill tendered to the plaintiffs $50 as and for the rental for June, 1920; that the plaintiffs informed him that his term expired on June 1st, and possession would be required on that date, and declined to receive the said rental so tendered, or to permit or to consent to the continuation of the tenancy; that the said defendant Hill thereupon announced that he had an option to hold said premises for another 12 months, and plaintiffs show that neither verbally nor in writing have they agreed, contracted, or consented to the continuation of the rental of said premises by the defendants, or either of them, and that the defendants are trespassers, holding said property unlawfully and in defiance of the rights of the plaintiffs; that the defendants are insolvent; that said premises are being used for a boarding and rooming house, to the detriment and injury of the plaintiffs. Plaintiffs show that they are unable to obtain possession of said premises by reason of the unlawful acts of the defendants; that they have no adequate remedy at law against said defendants, and will suffer irreparable injury and damage unless this honorable court shall exercise its injunctional power and issue its mandatory injunction, ordering and commanding said defendants to vacate and surrender possession of said premises, and upon refusal so to comply to oust them therefrom under the injunctional power of the district court. Appellees prayed that the cause be set down for hearing; that a temporary mandatory injunction issue, requiring appellants to vacate the premises in question and to surrender possession thereof to appellees, and that upon final hearing said mandatory injunction be made permanent, and that appellees have judgment for the possession of the premises in controversy, for costs of suit, and for general and equitable relief.
The appellants answered by general and special demurrers to appellees' petition; pleaded a general denial, and specially that they rented the premises in controversy for the period of one year at $50 per month, payable monthly in advance, the year expiring on the 31st day of May, 1920; that at the time the appellees rented the premises to the appellants, the appellees gave appellants an option on said premises for one year, beginning on the 1st day of June, 1920, and terminating on the 31st day of May, 1921, which was a part of the terms of the verbal lease theretofore made; that appellants occupied the premises until the 5th day of January, 1920, at which time the appellees demanded possession of the same, and thereafter filed suit in forcible entry and detainer for possession; that on the 23d day of June, 1920, the forcible entry and detainer suit was tried, and in the trial thereof appellees testified in accordance with their allegations in regard to the option given them by the appellees; that in pursuance with the contract made with appellees the appellants occupied the premises continuously up to the hearing of appellants' petition for the injunction in this suit and made certain improvements thereof, which was developed on the trial of the forcible entry and detainer suit and in which suit a verdict and judgment was rendered in favor of appellants. They denied having injured appellees' property, and alleged that they had been damaged by the bringing of this suit, and prayed judgment therefor.
Upon the hearing of the application for the temporary mandatory injunction asked, the trial court heard the pleadings, affidavits, and oral testimony offered, and at the conclusion of the hearing granted the injunction, and the appellants appealed.
The appellants have filed a brief in this court, but present, except in an informal way, only one assignment of error. That assignment is to the effect that the court erred in admitting in evidence the ex parte affidavit of J. E. Stark, one of the jurors on the trial of the forcible entry and detainer suit in the justice court, which affidavit contains the statement that the appellant Mrs. J. H. Hill testified...
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