Smith v. Wilson , 91 Tex. 503 ( 1898 )

These two applications may be disposed of in the same opinion.

The principal applicant — Smith — brought suit against the defendant in the application — Wilson — and prayed a writ of injunction, which was granted. He gave bond in the sum of $300 with his co-applicants as his sureties. The defendant pleaded in reconvention, claiming damages for the wrongful issue of the writ, of the plaintiff and the sureties on the injunction bond. The plaintiff dismissed his suit, and the cross-action was dismissed with it, but was subsequently reinstated. A trial resulted in a judgment in favor of the defendant against the plaintiff and his sureties in the sum of $300. A writ of error to that judgment was prosecuted in the Court of Civil Appeals and it was affirmed. To obtain a writ of error to the latter judgment application No. 1741 is filed.

In addition to suing out the writ of error to the judgment of the District Court, Smith and his sureties also brought in that court an original action to vacate that judgment and for a new trial. The trial court set aside the judgment, but upon appeal the Court of Civil Appeals reversed that decision and reinstated the former judgment. Application No. 1742 is for a writ of error in this latter case.

We are of the opinion, that we are without jurisdiction to grant either application. In the original suit when the plaintiff dismissed his petition, the case stood precisely as if the defendant had brought an action in the first instance for his damages. He claimed in his cross-action $1000 damages and in addition $250 as attorney's fees. It has been held, that in action for damages for wrongfully suing out a writ of injunction, attorney's fees are not recoverable. Railway Co. v. Ware, 74 Tex. 47. With respect to the question of jurisdiction, the case is not different from a suit upon a promissory note for $1000, with an allegation of damages to the amount of $1250, and a prayer for the recovery of that sum. The County Court would have had under the Constitution jurisdiction of such a case and so the defendant's cross-action in this case might have been brought in that court. The decision of the Court of Civil Appeals is therefore final. Rev. Stats., art. 996.

For a like reason, we have no jurisdiction over the action for a new trial of the former suit. If it is to be considered in all respects as an original and independent action, then it might have been brought in the County Court for the amount in controversy does not exceed $1000. If, for the reason that its object was to set aside a judgment and to obtain a new trial, it had to be brought in the court where the judgment was rendered, then it was an adjunct of the original cause and the jurisdiction of the Court of Civil Appeals and of this court over it would depend upon the jurisdiction over that case. In either event the jurisdiction of the Court of Civil Appeals is final and we are denied the power to grant a writ of error thereto. Rev. Stats., art. 996.

Both applications are therefore dismissed for want of jurisdiction.