Bull v. Bearden

This is an appeal from an interlocutory order upon an ex parte hearing granting an injunction upon the following petition: "Petitioners, T. P. Bearden and W. N. Cox, composing the firm of Bearden Cox, complaining of S. B. Britton and George W. Bull, represent that both plaintiffs and defendants reside in Palo Pinto county, Tex. That plaintiffs own in fee simple the land and premises hereinafter described and are entitled to the possession of same. That heretofore on the 13th day of May, 1913, the defendants forcibly entered upon said premises, seized and occupied same, and continue to hold, use, and occupy same, over the protest of plaintiffs, who have repeatedly requested defendants to vacate said premises to the end that, on or about the 14th day of May, plaintiffs instituted a forcible entry and detainer proceeding against the defendants in the justice court in precinct No. 3, in Palo Pinto county, Tex., for the possession of the premises complained of, which suit, after due and proper service of citations upon the defendants, who were present at the trial of said cause but made no answer therein, nor offered any evidence and did not set up any defense whatever but sat idly and mutely by and watched the performance of the trial in the guise of (innocent bystanders). In which trial judgment was rendered and entered for plaintiffs, granting them the possession of said premises with writ of restitution and execution, since which time and within the period required by law the defendants presented an appeal bond as required by law for appeal in such cases to the county court of Palo Pinto county, Tex., with J. T. Wilbar, A. V. Ware, J. T. Spratt, George McKinney, W. F. Harris, J. Y. Bankhead, Pete Tarameno, Bob Camfield as sureties thereon, which appeal bond has been approved by the court trying said cause, wherefore said cause is now pending appeal in the county court of Palo Pinto county, Tex., which court does not convene until the 27th day of July, 1913, thus leaving defendants in the possession of the premises complained of pending judgment in said county court as aforesaid. That plaintiffs are informed and believe and charge the fact to be that neither of said sureties are solvent and have no property within the jurisdiction of the court out of which any money could be made upon execution. That both of the defendants are insolvent and that said bond is worthless as far as the purposes of said suit are concerned, wherefore plaintiffs are left without a remedy for any damages for the detention of the possession of said premises pending trial and judgment in the county court. That the premises complained of consist of the lots and buildings known as the cold storage and icehouse at Mingus, Tex., and is of the value of $1,000, and the monthly rental value of same is worth $60 per month during the summer season, which is now on, for the purpose of handling ice and cold storage property. That plaintiffs are in the ice and cold storage business and desire to occupy said premises for said purpose. That to wait and bide the trial and judgment of the county court as aforesaid will work an irreparable injury to plaintiffs with only a remedy upon a worthless appeal bond for damages. That the defendants are naked trespassers without any defense at all whatever in support of their possession of the premises complained of; had all opportunity in the justice court as aforesaid and offered none. That the ice season is now on and evidently the purposes of such appeal can only be to hold and use the premises through the present ice season by virtue of this worthless appeal bond, to plaintiff's damage in the sum of rental value of said premises for the time thus occupied in the sum of $600. That plaintiffs are left without an adequate remedy at law for the relief sought. That plaintiffs are desirous that they be permitted to occupy said premises at the earliest possible moment as being in the ice business, with customers and contracts awaiting them for performance, and having arranged said premises for said purposes to meet the demand of the business for the season. That the premises complained of are situate in the town of Mingus, in Palo Pinto county, Tex., and known and described as lot No. 7 in block No. 1, as described in the plat of said town, and known as the cold storage and icehouse at Mingus, Tex. Wherefore, premises considered, plaintiffs pray that the most gracious writ of injunction issue restraining the defendants, S. B. Britton and George W. Bull, and their agents and employés, from the further occupancy of said premises for any purpose whatever, and that they be required to vacate same at once, and for his damages, for costs, and general relief."

No briefs are filed by either party, and we therefore confine our investigation to those questions raised by the appellants in their assignments of error filed below. The gist of these assignments is that the district court was without jurisdiction to issue the writ since the petition of complainants showed that the county court of Palo Pinto county had acquired jurisdiction of the issues involved and that its jurisdiction was therefore exclusive. But we think an answer to all these assignments is found in our conclusion that the petition states a cause of action for the recovery of the lands described as in an action of trespass to try title. That the facts pleaded would show the complainants entitled to the writ of forcible entry and detainer, or that they had even resorted to that remedy, would not, we think, deprive them of their remedy in the district court. Andrews v. Parker, 48 Tex. 94; Thurber v. Connors, 57 Tex. 96; McDannell v. Cherry, 64 Tex. 177.

When tested by article 7733, Revised Civil Statutes 1911, appellees' pleading appears to meet all the requirements of the statute as a petition in an action of trespass to try title, especially in the absence of an exception.

The writ of injunction under the allegations made was properly granted as an incident to the relief demanded and as such was properly authorized by article 4643, Revised Statutes 1911.

It is often held (Dean v. State, 88 Tex. 290, 30 S.W. 1047, 31 S.W. 185; Lazarus v. Swofford, 15 Tex. Civ. App. 367, 39 S.W. 389; Foust v. Warren, 72 S.W. 404; T. P. Ry. Co. v. Butler, 52 Tex. Civ. App. 323,114 S.W. 671), and of the correctness of this holding we have no doubt, that the power of the county court within the exclusive sphere of its jurisdiction to issue the writ of injunction is exclusive. But this rule in no manner contravenes the holding in this case, since, if we are right in our construction of the petition, the issues in the county court and in the district court were not the same. Under the statute (Revised Statutes 1911, art. 3950) in the forcible entry and detainer case, the only issue which can be determined is the right to actual possession; an inquiry as to the merits of the title being forbidden. While in the action of trespass to try title of course the scope of the issues is very much enlarged and the merits of the title do become an issue. So that, when tested by the rule announced in the authorities cited, the right of the county court to issue the injunction, even though it be conceded to exist in the forcible entry and detainer case, is not exclusive of the power of the district court to issue the writ in a trespass to try title case where the complainant otherwise shows himself entitled to the relief. We apprehend a plaintiff who had made an unsuccessful effort through an action of forcible entry and detainer to regain the possession of his land would not upon a plea of res adjudicata be estopped thereafter to recover the title and possession through an action of trespass to try title in the district court. For the same if not a greater reason, then, the mere pendency of the forcible entry and detainer case would in no manner preclude him from having all proper relief in the district court. The remedy of forcible entry and detainer is not exclusive but cumulative of any remedy the appellees may have in the district court. Juneman v. Franklin, 67 Tex. 411, 3 S.W. 562.

For the reasons already stated, the doctrine of election of remedies has no application. To be applicable the remedies must be inconsistent (Southern Ry. Co. v. City, 147 Ala. 653, 41 So. 664) to such an extent that the party cannot choose the one without renouncing the other (State v. Bank of Commerce, 61 Neb. 22, 84 N.W. 406), for if the two remedies, even dealing with a single subject of action, are not inconsistent, both may be employed concurrently, though a satisfaction of one would be a satisfaction of all. Rowell v. Smith, 123 Wis. 510, 102 N.W. 1, 3 Ann.Cas. 773.

There is no error in the judgment, and it is affirmed.