Walzel v. Southern Realty Corp., 12392

• Decision Date: 17 January 1952
• Docket Number: No. 12392,12392
• Citation: 245 S.W.2d 758
• Parties: WALZEL v. SOUTHERN REALTY CORP. et al.
• Court: Texas Court of Appeals

Page 758

245 S.W.2d 758

WALZEL v. SOUTHERN REALTY CORP. et al.

No. 12392.

Court of Civil Appeals of Texas, Galveston.

Jan. 17, 1952.

Rehearing Denied Feb. 7, 1952.

Effie Reslan, of Houston, for appellant.

Fulbright, Crooker, Freeman & Bates and Austin C. Wilson, all of Houston, for appellees.

MONTEITH, Chief Justice.

This is an appeal from an order of the District Court of Harris County, denying an application for a temporary injunction seeking to restrain appellees from levying a writ of restitution on him before he had perfected his appeal to this Court. The writ of restitution in question was issued in a forcible entry and detainer suit styled Southern Realty Corporation v. A. Walzel, originally brought in a Justice Court of Harris County to recover from appellant, A. Walzel, the possession of premises known as Nos. 407 and 408 in the Stewart Building in Harris County, Texas.

On November 20, 1951, appellee, Southern Realty Corporation, recovered a judgment against A. Walzel for the possession of said Rooms Nos. 407 and 408 in the Stewart Building in Houston, and writ of restitution was issued in said cause on November 26, 1951, and placed in the hands of a constable of Harris County for service. This Court granted an order restraining the constable from interfering with appellant's possession of said premises, pending a hearing as to whether said temporary restraining order should be made permanent.

This is an appeal from an interlocutory order entered by the District Court of Harris County, denying the application for said injunction. The only issue before the Court is whether the court erred in denying appellant's application for an injunction.

Art. 3973(3), Vernon's Annotated Civil Statutes, provides that if any person shall wilfully and without force hold over any lands, tenements or other real property after the termination of the time for which such lands, tenements or other real property were let to him, after demand made in writing for the possession thereof by the person or persons entitled to such possession, such person shall be adjudged guilty of forcible entry and detainer, or of forcible detainer, as the case may be.

Art. 3992, Vernon's Annotated Civil Statutes, provides that, 'The judgment of the county court finally disposing of the cause shall be conclusive of the litigation, and no further appeal shall be allowed, except where the judgment shall be for damages in an amount exceeding one hundred dollars.'

The facts in the record established the relation of landlord and tenant between the parties with the consequent right of appellee to prosecute this cause against appellant for the right of possession of the premises in question.

While under Art. 3992 the losing party in a forcible entry and detainer proceeding has the right of an appeal from a money judgment in a county court for an amount in excess of $100.00, the courts of this state have uniformly held that such an appeal will be limited to the question of damages and that, in no event, shall the appellate court review or revise the question of right of possession of the property in question. Davis v. Burnett, Judge, Tex.Civ.App., 179 S.W.2d 1014; St. Matthews Methodist Church v. Watrous, Tex.Civ.App., 191 S.W.2d 489; Madison v. Martincz, Tex.Civ.App., 56 S.W.2d 908, writ refused; 19 Tex.Jur., page 791, sec. 26; Rule 755, Texas Rules of Civil Procedure; Gillam v. Baker, Tex.Civ.App., 195 S.W.2d 826.

It is undisputed that judgment was rendered in the county court at law of Harris County in favor of appellee, Southern Realty Corporation, and against appellant, A. Walzel, for the possession of the premises in question. It is the established law in this state that an injunction will not-in such situations-be granted either (1) to correct errors in a judgment which might have been corrected by legal remedies, or (2) to prevent the issuance of, or to correct an execution where the right of appeal from that proceeding has been denied by statute. Urbanec v. Jezik, Tex.Civ.App., 138 S.W.2d 1098; Hayes v. Bone, Tex.Civ.App., 69 S.W.2d 180; Reast v. Hughes Tex.Civ.App., 33 S.W. 1003; Odom v. McMahan, 67 Tex. 292, 3 S.W. 286.

In the case of Ringgold v. Graham, Tex.Com.App., 13 S.W.2d 355, 356, the facts are similar in all material respects to the facts in the case at Bar. The case involved an appeal from the actions by the District Court and the Court of Civil Appeals in a suit to enjoin the enforcement of a judgment and writ of restitution rendered and entered in a forcible entry and detainer suit, which judgment and writ were alleged to be void. The Commission of...