Houston, B. & T. Ry. Co. v. Hornberger

• Decision Date: 16 May 1911
• Citation: 141 S.W. 311
• Parties: HOUSTON, B. & T. RY. CO. v. HORNBERGER.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

141 S.W. 311

HOUSTON, B. & T. RY. CO. v. HORNBERGER.^†

Court of Civil Appeals of Texas. Galveston.

May 16, 1911.

Condemnation proceedings by the Houston, Belt & Terminal Railway Company against Jacob Hornberger. From an award of the commissioners, defendant appealed to the county court where judgment was rendered for defendant. An appeal was taken, and the Court of Civil Appeals granted an injunction restraining defendant from granting the judgment. On motion to dismiss the injunction. Motion denied.

Andrews, Ball & Streetman, A. L. Jackson, and C. K. Burns, for applicant. Campbell & Sewall, for respondent.

PLEASANTS, C. J.

The appellant, a terminal railway company, organized and chartered under the laws of this state, and claiming as such the right of eminent domain, filed its application and statement with the county judge of Harris county, in accordance with the provisions of the statute, seeking to condemn for right of way purposes a strip of land 96.4 feet in width by 1,442 feet in length over and upon a tract of 75 acres of land near the city of Houston in Harris county, Tex., belonging to appellee, Hornberger. Commissioners were appointed as required by the statute, and the appellee being cited appeared and filed answer. Upon a hearing before said commissioners both parties introduced evidence of the value of the land sought to be condemned and of the damages to the remainder of the land of appellee. After hearing and considering the evidence, the commissioners, on July 2, 1910, found that the value of the land sought to be condemned, and the consequential damages to the remainder of appellee's tract amounted to $1,600, and made, signed, and filed their findings in writing to that effect. On July 7, 1910, appellee filed his written objections and opposition to the award of the commissioners, and gave notice of appeal to the county court of Harris county. Thereupon appellant tendered to the appellee the sum of $1,600, the amount of said award, and upon his refusal to accept same deposited said amount with the clerk of the county court of Harris county subject to appellee's order, and at the same time paid the cost adjudged against it, made the additional deposit, and executed the bond required by the statute to entitle it to take possession of said right of way. After fully complying with the statute, as aforesaid, appellant took possession of the strip of land sought to be condemned by it and constructed thereon its roadbed and track for permanent use in connection with the remainder of its track.

Upon the trial of appellee's appeal in the county court of Harris county, after rendering a judgment on April 3, 1911, on the verdict of a jury in favor of plaintiff for condemnation of the right of way, and in favor of defendant for damages in the sum of $7,392.50, the court, on April 10, 1911, sustained a motion by defendant in arrest of judgment and entered a final judgment vacating the former judgment rendered on April 3d, and denying appellant's right to condemn appellee's property, on the ground that appellant is not a common carrier and not subject to regulation by the Railroad Commission of the state of Texas, and therefore the statute giving it the right of eminent domain is unconstitutional. This judgment further decrees that appellee have a writ of possession for the right of way over his land now in the possession of appellant. From this judgment appellant, having excepted thereto in open court and given notice of appeal, perfected its appeal to this court by filing in due time a supersedeas bond in an amount more than double the value of the property and the damages claimed by appellee and the probable cost. Thereafter, on application to this court by appellant, it was made to appear that notwithstanding said appeal and the filing of said supersedeas bond by appellant, appellee had procured or was about to procure the issuance of a writ of possession by the county clerk of Harris county and to proceed thereunder to oust appellant from the possession of said right of way pending the decision of the appeal to this court. Upon this showing we ordered the issuance of a writ of injunction restraining appellee from executing the judgment of the court below pending the final decision of the appeal. This writ having been issued and served, appellee has filed a motion to dissolve said injunction upon the grounds hereinafter indicated.

First, it is contended that the ordering of the injunction by this court was the assumption of a power or jurisdiction not conferred by the Constitution or law upon Courts of Civil Appeals or the judges thereof.

The authority conferred by the statute upon Courts of Civil Appeals to grant an injunction is confined to cases in which the issuance of such writ is necessary to enforce the jurisdiction of the court granting the writ, and it is well settled that such courts have no original jurisdiction to issue writs of injunction, it matters not how necessary such relief may be for the protection of the rights of the applicant therefor. R. S. 1895, art. 997; Ellis v. Harrison, 24 Tex. Civ. App. 13, 56 S. W. 592, 57 S. W. 984; City of Laredo v. Martin, 52 Tex. 548.

It follows that unless the writ of injunction heretofore issued by this court, restraining the execution of the judgment of the court below pending the appeal, was necessary to enforce the jurisdiction of this court, said injunction was unauthorized and should be dissolved.

Assuming that the judgment of the court below was suspended by the filing by appellant of the supersedeas bond, we think the issuance of the injunction was necessary to the enforcement of the jurisdiction of this court. The perfection of the appeal by the filing of the supersedeas bond conferred upon this court complete and active jurisdiction of the subject-matter of the suit and of the parties in their relation to such matter so long as the appeal may be pending in this court. Until the adjournment of the county court this jurisdiction was subject to the power of that court to set aside or modify its decree, but that court having adjourned without further action in the premises, the jurisdiction of this court is now unconditional. Churchill v. Martin, 65 Tex. 368; Ellis v. Harrison, 24 Tex. Civ. App. 13, 56 S. W. 592, 57 S. W. 984; Gordon v. Rhodes, 104 S. W. 786. Having thus obtained complete jurisdiction of the res, or subject-matter of the suit, the power of this court to preserve the status quo and maintain and protect the possession of the property which forms the subject-matter of the suit as it existed at the time the appeal was taken is inherent, and the issuance of an injunction, where necessary for this purpose, is a proper exercise of the authority conferred upon Courts of Civil Appeals by the statute to issue writs of injunction when necessary to enforce their jurisdiction. The right to the permanent possession of the right of way includes the right to its possession pending the final decision of the case, and is the material issue involved in the appeal, and in order to preserve this right in its entirety the supersedeas bond was executed. If, notwithstanding the execution of said bond, appellee is permitted to oust appellant from the possession of the land pending the appeal, it is manifest that the orderly exercise of the jurisdiction of this court to determine the whole issue of appellant's right of possession will be infringed, and a writ of injunction issued in the necessary protection of this jurisdiction is authorized under the statute before cited. If appellate courts could not enforce their jurisdiction in this way, the right given a litigant to suspend a judgment of a trial court by appeal and the filing of a supersedeas bond would have no protection, and the final decision of the appellate court would often be merely the decision of an abstract question, the subject-matter or substance of the appeal having been practically destroyed by the execution of the judgment of the lower court pending the appeal. No construction of the statute conferring power upon appellate courts to issue writs of injunction when necessary to enforce their jurisdiction which would produce such results can be sound. Waters-Pierce Oil Co. v. State (Sup.) 106 S. W. 326; Railway Co. v. Railway Co., 68 Tex. 98, 2 S. W. 199, 3 S. W. 564; Havemeyer v. Superior Court, 84 Cal. 327, 24 Pac. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192.

It is next very earnestly insisted by counsel for appellee in a learned and able brief and oral argument presented on the bearing of the motion to dissolve that the statute regulating appeals from the judgment of a county court in a condemnation proceeding expressly provides that such judgment shall not be suspended by the appeal, and that therefore appellant has no right to an injunction restraining the execution of the judgment of the trial court.

The statute in question is found in the Acts of the Twenty-Sixth Legislature, p. 105, c. 70. The act in full, including the caption and emergency clause, is as follows:

"An act to amend article 4471, of chapter 8, title 94, of the Revised Civil Statutes of the state of Texas, of 1895, so as to permit...