Wolf v. Young
| Decision Date | 16 February 1955 |
| Docket Number | No. 12855,12855 |
| Citation | 275 S.W.2d 741 |
| Parties | Raymond F. WOLF et al., Relators, v. John YOUNG, County Judge of Nueces County, Texas, et al., Respondents. |
| Court | Texas Court of Appeals |
Trimble & Dobbs, Corpus Christi, for appellants.
I. M. Singer, Ellis M. Brown, Corpus Christi, for appellees.
Raymond F. Wolf and some thirty others are appellants in Cause No. 12837, pending on the docket of this Court, in which John Young, County Judge of Nueces County, Texas, and the City of Corpus Christi are appellees. Wolf and his associates in this litigation filed a pleading in this Court which they designated as 'Appellants' Motion to Advance Submission and for Injunctive Relief.' The pleading was two-fold and so considered by the Court. The portion thereof relating to the advancement of submission was treated as a motion, and said Cause No. 12837 advanced and set for submission and oral argument on March 9, 1955.
That portion of the pleading seeking injunctive relief was treated as an original proceeding. The Court permitted the presentation of an oral motion for leave to file the pleading, granted the same, and ordered the cause for injunctive relief transferred to the trial docket, where it was assigned No. 12855. Such cause duly came on for submission and argument and is now properly before us for disposition.
In this case we shall refer to Wolf and his associates upon the appeal, Cause No. 12837, as relators, and the County Judge of Nueces County, Texas, and the City of Corpus Christi as respondents. The pleading filed by relators, insofar as it relates to injunctive relief, will be referred to as the petition.
From the petition for injunction it appears that relators, as plaintiffs in the court below, asserted the invalidity of an ordinance of the City of Corpus Christi annexing certain adjacent territory owned by relators. They contended that prior to this action by the City a petition had been filed with the County Judge, requesting that an election be called to determine whether such territory should be incorporated as a town or village under the provisions of Title 28, Chapter 11, Article 1133 et seq., Vernon's Ann.Tex.Stats. The trial court dismissed the suit upon relators' refusal to amend, after a plea in abatement and certain special exceptions to the petition had been sustained. This was a final judgment upon the merits. 'Where the trial court sustains exceptions which leaves no cause of action pending, and the plaintiff refuses to amend, a final judgment of dismissal for this reason is res adjudicata of another suit upon the same cause of action.' Peek v. Berry, 143 Tex. 294, 184 S.W.2d 272, 274, 156 A.L.R. 949. The question of the correctness of the trial court's actions of the correctness of plea in abatement and special exceptions and rendering the judgment of dismissal is a matter which is not now before us, but must be decided upon the appeal taken from such judgment.
Although it appears that no application for a temporary restraining order or injunction pending appeal was presented to the trial court, relators request us to issue an original writ of injunction restraining the City of Corpus Christi from exercising jurisdiction over the property of relators lying within the territory which the City has sought to annex. The particular statutory authority relied upon by relators for the issuance of the original writ is Article 1823, Vernon's Ann.Tex.Stats.
The Constitution of this State provides that Courts of Civil Appeals 'shall have such other jurisdiction, original and appellate, as may be prescribed by law.' Vernon's Ann.St.Const. art. 5, § 6. Acting under this constitutional provision, the Legislature has prescribed the jurisdiction of this Court by adopting Articles 1819, 1820 and 1821, relating to our appellate jurisdiction, and Articles 1823 and 1824 relating to our original jurisdiction. Article 1824, providing for the issuance of a mandamus to order a judge of a district or county court to proceed to trial and judgment, is not here involved. It is contended that the issuance of the writ requested is necessary to enforce the jurisdiction of this Court under Article 1823, which provides that:
'Said courts (of Civil Appeals) and the judges thereof may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.'
In substance and briefly stated, it is alleged by relators as a ground for the issuance of the temporary writ by this Court, that unless restrained, the City of Corpus Christi will extend its powers of municipal government over the territory in dispute and attempt to collect taxes, enforce penal ordinances, zoning rules and like regulations; that this will result in serious inconvenience and damage to relators and materially interfere with their normal mode of life, cause them to dispose of their livestock and poultry and tend to deprive them of their means of livelihood. While it is alleged by way of conclusion that the actions of the City of Corpus Christi will render this cause moot, the gravamen of the argument seems to be that the greater balance of the equities supports the issuance of the temporary writ prayed for. At all events, it appears that the main point at issue is the asserted invalidity of the annexation ordinance of the City of Corpus Christi, and that such issue will not be rendered moot nor the subject matter of this litigation destroyed by the refusal to issue the writ prayed for. On the contrary, it definitely appears that the purpose of the requested writ is to prevent damage to relators pending the disposition of their appeal.
This raises a jurisdictional question which, however, has been determined by the better considered appellate decisions of this State. It is recognized that any writ, be it mandamus, prohibition, injunction, or some other type, when originally issued by this Court, is an exercise of original jurisdiction. However, as above pointed out, our original jurisdiction is a limited one, embodied in two articles of the Revised Statutes. Under Article 1823, our jurisdiction to issue an original writ of injunction is limited to the preserving of the jurisdiction of this Court. We have no jurisdiction to issue an original writ to prevent damage to a litigant pending appeal.
This peculiarity in our appellate system, if such it may be called, is well ingrained and antedates the establishment of the Courts of Civil Appeals.
In City of Laredo v. Martin, 52 Tex. 548, decided in 1880, it was held that the Supreme Court had no power 'to issue an injunction, in the first instance to prevent damage to the parties during the pendency of the suit.' Chief Justice Roberts, speaking for the Court, said:
'The appellant makes this motion for a 'temporary or provisional' injunction to be issued by this court to restrain the defendants, as prayed for in the sworn petition, until the final determination of the appeal, and refers to the pleadings and evidence in the record in support of said motion.
In Tipton v. Railway Postal Clerks Inv. Ass'n, 170 S.W. 113, the Fort Worth Court of Civil Appeals said:
Texas Civil Statutes (Vernon's Ann.Civ.St. art. 4662), regulating appeals in injunction cases, provides that:
"Such appeal shall not have the effect to suspend the enforcement of the order appealed from, unless it shall be so ordered by the court or judge who enters the order.'
'It thus appears that the Legislature has purposely clothed the trial court with exclusive power to determine the force and effect of orders refusing or dissolving an injunction pending an appeal. This statute, in effect, adopts the practice by rule in the United States Supreme Court. See Hovey v. McDonald, 109 U.S. 150, 3 S.Ct. 136, 27 L.Ed. 888. * * * But beyond this the jurisdiction of this court is appellate only and it has no power to issue an original writ of injunction in order to protect the parties from damage during the pendency of an appeal to it. As stated by the Supreme Court in (City of) Laredo v. Martin, 52 Tex. 548:
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