Village Mills Co. v. Houston Oil Co. of Texas

• Decision Date: 10 November 1916
• Docket Number: (No. 171.)
• Citation: 191 S.W. 723
• Parties: VILLAGE MILLS CO. v. HOUSTON OIL CO. OF TEXAS.
• Court: Texas Court of Appeals

191 S.W. 723

VILLAGE MILLS CO. v. HOUSTON OIL CO. OF TEXAS.

(No. 171.)

Court of Civil Appeals of Texas. Beaumont.

November 10, 1916.

Rehearing Denied December 7, 1916.

Appeal from District Court, Hardin County; J. Llewellyn, Judge.

Suit for injunction by the Houston Oil Company of Texas against the Village Mills Company. From an order granting a writ on ex parte hearing without notice, the defendant appeals. Reversed, and motion to dissolve the injunction sustained.

See, also, 186 S. W. 785.

W. D. Gordon, H. G. Russell, and Thos. J. Baten, all of Beaumont, for appellant. Parker & Kennerly, of Houston, for appellee.

BROOKE, J.

The preliminary statement made by the appellant is a fair and impartial statement of the nature and result of the case, and we here adopt the same, as follows:

"This action was instituted by the Houston Oil Company, appellee, in the district court of Hardin county, for the Seventy-Fifth judicial district, seeking a writ of injunction pendente lite against the Village Mills Company, appellant. The object of the suit was to enjoin the appellant from holding possession of, cutting, or removing, timber from a certain league of land in Hardin county, known as the D. C. Montgomery League, during the pendency of a certain suit originating in the district court of Hardin county, Tex., for the Ninth judicial district, as cause No. 2570, styled Houston Oil Company of Texas et al. v. Village Mills Company, and involving the title and possession to said league of land, as between this appellee and appellant. This last-named suit is now pending in this honorable court on appeal, as cause No. 42, Village Mills Company, Appellant, v. Houston Oil Company of Texas, Appellee. The lower court in vacation on an ex parte hearing without notice granted the writ of injunction as prayed for upon the showing made by the petition, without proof, and from such action this appeal was taken.

"In the petition upon which this writ was granted, appellee alleged that it was in good faith asserting its title to said league of land under title and color of title from the sovereignty of the soil, and, while so claiming, had been in actual possession thereof for more than 10 years, paying all taxes thereon as they accrued; that since the 6th day of June, 1906, it has held actual and exclusive possession of said land through its tenant, H. J. Cockerham.

"It is further alleged therein that early in the year 1914, the Village Mills Company entered upon said league and began to cut and remove timber therefrom, which it agreed to stop upon the Houston Oil Company bringing suit for the title and possession of such land, and that thereafter the Houston Oil Company duly filed suit in the district court of Hardin county for the Seventy-Fifth judicial district, same being suit No. 2570, styled Houston Oil Company v. Village Mills Company, the petition being in the ordinary form of trespass to try title, plaintiff (appellee) claiming to hold the land in fee simple under title and color of title from the sovereignty of the soil, and further pleading the three, five, and ten years' statute of limitations; that the defendant (appellant) appeared and filed answer, and upon trial judgment was rendered for plaintiff (appellee), for the title and possession of said league, as well as for damages for all timber cut, whereupon the Village Mills Company appealed said cause to this honorable court, where it is now pending, as aforesaid; that the Village Mills Company is now threatening to go again upon said league of land and cut and remove merchantable timber therefrom, and will do so in a few days unless prevented by injunction.

"The petition closes with a prayer for writ of injunction to prohibit the Village Mills Company from cutting and removing timber from said league, as well as from trespassing thereon during the pendency of said suit originating in the district court of Hardin county for the Seventy-Fifth judicial district, in cause No. 2570, as aforesaid.

"Attached to the foregoing petition is the affidavit of Oswald S. Parker, appellee's attorney of record, to its correctness, except wherein the allegations were made upon information and belief, as well as the allegations of possession by H. J. Cockerham, all of which affiant states he believes to be true.

"The records of this honorable court, as well as of the lower court, show that said cause No. 2570, Houston Oil Company of Texas et al. v. Village Mills Company, was instituted by the Houston Oil Company in the district court of Hardin county for the Ninth judicial district, and not in the lower court. Such records further show that the Houston Oil Company instituted such action, seeking to recover the possession of said league of land from the Village Mills Company, whom they alleged had ousted them therefrom and were withholding such possession thereof."

The contention in this case is twofold: First, that the lower court acted without jurisdiction in attempting to grant the relief prayed for; and, second, that the action of the court in granting relief was an abuse of judicial discretion. The first proposition is:

"The lower court acted without jurisdiction in attempting to grant the relief sought herein, because, the controversy over the title and possession of the league of land in question having been submitted by the parties hereto to a court of competent jurisdiction, to wit, the district court of Hardin county for the Ninth judicial district, that court had exclusive jurisdiction over the entire controversy, subject only to the jurisdiction of the Court of Civil Appeals for the Ninth Supreme Judicial District, to which said case was appealed. And the lower court was without authority to interfere in such controversy by granting a writ of injunction under the guise of protecting the subject-matter pending the aforesaid litigation or otherwise."

Without undertaking to thoroughly discuss the proposition, we deem it sufficient to say that, in our opinion, this first contention of appellant is correct; that is, we are of opinion that the lower court acted without jurisdiction in attempting to grant the relief prayed for. In the case of Miller & Vidor Lumber Company v. Williamson et al., 164 S. W. 441, the court says:

"By its first assignment of error appellant complains that the court erred in overruling its motion for new trial on the third ground thereof, which is that: `The court erred in sustaining defendants' motion to dismiss and in dismissing this cause, because it appeared that the defendants in this suit are the plaintiffs in the suit pending in Jasper county, and that the plaintiff has brought but one suit against said defendants for the property involved herein.' Under this assignment appellant contends that the pendency of two suits between the same parties and...