text:
    CITY OF SAN ANTONIO v. BODEMAN.

    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 11, 1914.
    Rehearing Denied March 4, 1914.)
    1. Appeal and Error (§ 242) — Pleadings— Defects — Presentation to Trial Court.
    Where there is a total omission of the petition to state a cause of action, or of some fact essential to the cause of action, the defect will not be cured by verdict, and defendant may raise it on appeal, though his general demurrer has not been acted on by the trial court.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1417-1425; Dec. Dig. § 242.]
    2. Pleading (§ 34) — Construction — Defects.
    Where a general demurrer to a petition was not called to the attention of the trial court, and was first urged as ground for reversal on appeal, every reasonable intendment arising on the petition must be resolved in favor of its sufficiency.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §1 5½, 66-74; Dee. Dig. § 34.]
    3. Municipal Corporations (§ 165) — Compensation op Officer — Action—Petition —Objections.
    In a suit by an officer against a city to recover salary, failure of the petition to set out the ordinance creating the office in hsec verba or in substance is a defect which should be taken advantage of by special exception, and could not be made a ground for general demurrer.
    [Ed. Note. — For other cases, see Municipal Corporations Cent. Dig. §§ 373, 374; Dec. Dig. § 165.]
    4. Municipal Corporations (§ 186) — Oebt-cebs — Actions for Salary — Petition.
    Where, in an action by a detective in a city police department to recover salary, the petition alleged that plaintiff was appointed to the office of detective in the department, and that by a city ordinance the salary of the position was fixed at $85 per month, under which plaintiff was appointed to the position for two years and until his successor was appointed and qualified, such allegations alleged by in-tendment that the office existed at the time of the appointment, and that it was created by ordinance properly adopted, etc.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 510-517; Dec. Dig. § 186.]
    5. Appeal and Error (§ 301) — Assignments of Error — Grounds for New Trial.
    Rev. St. 1911, art 1612, as amended by Acts 33d Leg. c. 136, provides that an appellant shall file with the clerk of the trial court all assignments of error distinctly specifying the grounds on which he relies, before he takes the transcript from the clerk’s office, provided that where a motion for a new trial has been filed that the assignments therein shall constitute the assignments of error, and that all errors not distinctly specified are waived. Held that, while such act does not require that the formal assignments shall be literal repetitions of the paragraphs of the motion for new trial, it does require that such assignments must be based on the points presented in the motion, and hence an assignment of error complained of which presents a question not hinted at in the motion for new trial cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1743, 1753-1755; Dec. Dig. § 301.]
    Appeal from County Court for Civil Cases, Bexar County; John H. Clark, Judge.
    Action by Albert Bodeman against the City of San Antonio. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Geo. R. Gillette and Robt. G. Harris, both of San Antonio, for appellant. Henry E._ Vernor and Joseph Ryan, both of San Antonio, for appellee.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

       Writ of error pending in Supreme Court.

   MOURSUND, J.

Albert Bodeman sued the city of San Antonio for nine months’ salary, at $85 per month, as detective in the police department of said city. He alleged that on July 20, 1911, a commission duly signed by the mayor and attested by the city clerk of said city, under the corporate seal of said city, was issued to him appointing him to the office and position of detective in the police department of said city, he having been previously appointed by the mayor and confirmed by the city council to said office and position as provided by the charter of said city, said appointment, under the Constitution and laws of the state and charter and ordinances of the city, being for the term of two years and until his successor should be appointed and qualified; that by ordinances of said city and under the budgets thereof the salary of said position was fixed at $85 per month, payable each month, and the city council of said city regularly made provision therefor for the full fiscal years and each month during the two-year period ending May 31, 1913, and paid plaintiff such salary for each month until August 31, 1912, when, without authority of law and without action by the city council as by the charter of said city required, plaintiff was unlawfully by the mayor and city marshal discharged from the service of said city; that he was entitled to a warrant for his said salary at the end of each and every month as by the charter and ordinances of said city provided, but since said last-named date defendant has not paid plaintiff such salary and has refused to issue him any warrant therefor, though provision had been made throughout said period of time for the amount and payment of such salary for such position. Plaintiff alleged further that he had a lien upon the current revenues of the city for the fiscal year ending May 31, 1913, and prayed that said lien be, established and that defendant and its officers, agents, and employés be enjoined from disbursing the funds properly applicable to his claim, and also that a mandamus issue requiring them to issue him a proper warrant for the sum due him, including interest, and requiring them to pay same out of the revenues for said fiscal year and of any other year properly applicable thereto. Defendant answered by general demurrer and general denial. Upon a trial before the court judgment was rendered awarding plaintiff $797.92, and granting the relief by mandamus and injunction as prayed for by him. Defendant appealed.

By the first and second assignments of error it is contended that the general demurrer should have been sustained. Appellee objects to the consideration of these assignments because the judgment fails to show any action on the demurrer. Our courts have frequently stated that, where the record does not show that demurrers and exceptions were called to the attention of the trial court and passed upon, they will be considered as waived. Moore v. Woodson, 44 Tex. Civ. App. 503, 99 S. W. 116; Insurance Co. v. Boren, 83 Tex. 97, 18 S. W. 484; Floyd v. Rice, 28 Tex. 341; Railway v. Rollins, 89 S. W. 1099; Bonner & Eddy v. Glenn, 79 Tex. 533, 15 S. W. 572; Cotton v. Cooper, 160 S. W. 602. Authorities are cited in Encyclopedic Digest of Texas Reports, vol. 6, p. 310, as supporting the rule above stated, but an examination of them shows that many only involved rulings, upon special exceptions. But in the case of Beaumont Irrigating Co. v. Gregory, 136 S. W. 548, the court states that such rule of waiver applies to special exceptions, but not to a general demurrer. This statement is based upon the decisions which hold that, when a petition is fatally defective and fails to state a cause of action, the fact that defendant did not rely upon his demurrer will not prevent him from availing himself of such defect on appeal. Grant v. Whittlesey, 42 Tex. 320; Bradshaw v. Davis, 12 Tex. 345; Stansbury v. Nichols, 30 Tex. 150; Black v. Calloway, 30 Tex. 237; Alamo Ins. Co. v. Davis, 45 S. W. 604; Schuster v. Frendenthal, 74 Tex. 54, 11 S. W. 1051. A petition may fail to state a cause of action because of the omission of necessary averments. T. & P. Ry. Co. v. McCoy, 3 Tex. Civ. App. 276, 22 S. W. 926. Again it may show on its face that recovery is sought upon an illegal contract. Redland Fruit Co. v. Sargent, 51 Tex. Civ. App. 622, 113 S. W. 330; Norris v. Logan, 97 S. W. 820. Or it may allege facts showing a defense to the cause of action sought to be recovered upon. Moore v. Snell (Sup.) 88 S. W. 273. The cases holding that a general demurrer may be waived, and those holding that it may be interposed upon appeal, though not presented in the trial court, present an apparent conflict. Our investigation leads us to believe that in many eases cited in support of the doctrine that a general demurrer may be waived the court was considering special exceptions, while in others the objections urged as sufficient to sustain a general demurrer were of such a character that they should have been presented in the form of special exceptions.

It will be noticed that the case of Chambers v. Miller, 9 Tex. 236, apparently holds that a demurrer may be waived, but in fact the demurrer was to the answer, and the sufficiency of the pleadings to support the judgment was not before the court. In the next ease, in the same volume, De Witt v. Miller, 9 Tex. 239, the court recognizes the doctrine that defects in a petition may be of such character that they may be taken advantage of in the appellate court, though no demurrer was filed below. The case of Rowlet v. Fulton, 5 Tex. 458, has also been cited in support of the waiver of a general demurrer, but in fact the court said: “The record shows no action on the demurrer; and, unless the objections would be fatal on error, they cannot be noticed on appeal.” The court declined to examine into the alleged defects because the case was reversed upon another ground. There can be no doubt that our courts have always held that a fatally defective petition may be attacked upon appeal, though such error was not urged below or was apparently waived. But the rule sometimes imposes a hardship, and, in order to avoid such hardships as much as possible, it is held that the answer may be considered with the petition to see whether the pleadings support the judgment. In fact, our courts have gone a step further, and held that, even when a demurrer is urged against a petition in the lower court, such petition may be aided by the averments of the answer. For authorities, see Peoples v. Brockman, 153 S. W. 910. This holding is not logical in view of tlie statute which requires defensive pleadings to be filed at the same time and in due order, but it does no injustice and appears to be settled law in this state. It is also held that the verdict may cure defects in the petition. De Witt v. Miller, 9 Tex. 245; McClellan v. State, 22 Tex. 409; Williams v. Warnell, 28 Tex. 610; Schuster v. Frendenthal, 74 Tex. 54, 11 S. W. 1051; Lewis v. Batten, 35 Tex. Civ. App. 370, 80 S. W. 389; Indiana & Ohio L. S. Ins. Co. v. Smith, 157 S. W. 755; Rich v. Telegraph Co., 101 Tex. 470, 108 S. W. 1152; Ellis v. Howard Smith Co., 35 Tex. Civ. App. 566, 80 S. W. 633.

In the cases of Stansbury v. Nichols, 30 Tex. 150, and T. & P. Ry. Co. v. McCoy, 3 Tex. Civ. App. 276, 22 S. W. 926, it was held that the defects were of such character that the were not cured by the verdict. In the cases of De Witt v. Miller and Schuster v. Frendenthal, supra, the court undertook to briefly lay down a rule for determining when a verdict cured a defect in pleading. See, also, Townes, Texas Pleading (2d Ed.) p. 440, for a statement of the rule, and, for a full discussion, see Ohitty on Pleading (16th Ed.) pp. 705-716. On page 711, after discussing many cases, the author says: “It will be observed that in all the eases we have given upon this subject, although the particular matter was not stated in express terms, the declaration or other pleading in each case contained terms sufficiently general to comprehend it in fair and reasonable intendment.” The author shows that in some cases the rule has been extended to cure by verdicts entire omissions in pleadings, upon the presumption that proof of the omitted fact was made in order to procure the' verdict; but he considers such cases in conflict with the weight of authority. It is plainly deducible from the cases decided by our Supreme Court that said court has always been of the opinion that when the sufficiency of the petition is questioned for the first time after verdict more liberal rules should be applied in passing on the same than are laid down for testing the pleading when the demurrer is interposed and urged at the proper time. But the cases cited by us, in so far as they undertake to announce a rule, go back to Chitty on Pleading for the same, and we find no definite statement by our Supreme Court of the adoption of a more liberal rule than that sustained by the weight of authority according to said work, and the words above quoted from such work indicate the application of the rule so announced to be practically equivalent to the application of rule 17 for our district and county courts (142 S. W. xviii). Nor are we able to see any substantial difference between many allegations held sufficient in our courts upon applying rule 17, and those thought to be insufficient in other cases but held to have been cured by verdict. Our courts have adhered to the view that wheré there is a total omission to state a cause of action, or some fact essential to the cause of action has been wholly omitted, a verdict will not cure the defect. Ramsay v. McCanley, 2 Tex. 189; Ellis v. Howard Smith Co., 35 Tex. Civ. App. 566, 80 S. W. 633. The modern tendency is toward greater liberality in the construction of pleadings in order not to require the retrial of a case when justice has been done, and the parties understood what the points in issue were, and the same were submitted to a court or jury.

The sufficiency of the petition in the in: stant case being assailed, we must examine the same, and see whether the objections made thereto demonstrate that no cause of action is alleged. No answer having been filed, except a general denial, the petition must be tested by its averments alone. But every reasonable intendment arising upon .such petition mubt be resolved in favor of its sufficiency. Rule 17 for District & County Courts. We must consider everything as properly alleged which by reasonable construction is embraced within the allegations contained in the petition. Martin v. Brown, 62 Tex. 467; Railway v. Hinzie, 82 Tex. 623, 18 S. W. 681; Gibbens v. Bourland, 145 S. W. 275; Morgan v. Brown, 156 S. W. 362.

Three objections are urged: (1) The failure to allege the creation by ordinance of the office of “detective in the police department” and the existence of such office at the time of plaintiff’s alleged appointment. (2) The failure to' set out the ordinance which creates the office in htec verba or in substance. (3) The failure to allege that the mayor was authorized by ordinance to employ and appoint a person to fill the office or position of “detective in the police department” for the term for which plaintiff claims to have held the office.

The failure to set out the ordinance which creates the office in hsee verba or in substance is a defect wh}ch clearly should be asserted by special exception and cannot be ground for sustaining a general demurrer. City of Austin v. Walton, 68 Tex. 507, 5 S. W. 70; Brush E. L. & P. Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898. Conceding that the establishment of a police department must be made by ordinance (see sections 51 and 65 of charter), and that the petition must allege the creation thereof by ordinance and the existence thereof at the time plaintiff’s alleged appointment took place, we do not think the petition is subject to the first objection. The allegation that plaintiff was appointed to the office of detective in the police department carries with it the intendment that such office existed at the time of such appointment. The allegation that by ordinances of said city the salary of said position was fixed at the sum of $85 per month carries with it the intendment that the office was created by ordinance, and so does the allegation that under the ordinances of the city the appointment oí plaintiff to tlie office and position was for two years and until Ms successor should be appointed and qualified. The third objection is also without merit. Section 16 of the charter does not mean that the mayor is empowered “to make appointments when he is so authorized by ordinance,” as contended by appellant, but that when by ordinance certain officers are authorized, that is, the offices created, the mayor makes the appointments, and no ordinance need be passed specially empowering him to make the appointments, for that power is given him by charter.

In support of indulging the intendments above mentioned, we cite the following cases: Rutherford v. Smith, 28 Tex. 322; Insurance Co. v. Gibbs, 35 S. W. 679; Insurance Co. v. Pearlstone & Smith, 18 Tex. Civ. App. 706, 45 S. W. 832; Pennington v. Schwartz, 70 Tex. 211, 8 S. W. 32; Wynne v. Bank, 82 Tex. 378, 17 S. W. 918; Gibbens v. Bourland, 145 S. W. 274; Railway v. Morris, 68 Tex. 61, 3 S. W. 457. We also invite a comparison between the averments of this petition and those in the following cases, in which the verdict was held to have cured the defects, viz.: McClellan v. State, Williams v. Warnell, Schuster v. Frendenthal, Ellis v. Howard Smith Co., Indiana & Ohio L. S. Ins. Co. v. Smith, all hereinbefore cited.

If the. return of a verdict or rendition of judgment by the court sitting without a jury cures defects additional to those cured by indulging every reasonable intendment, then this is manifestly a case in which the rule should be applied. The assignments are overruled.

By the third assignment it is contended that the court erred in rendering judgment for the plaintiff because the salary was not fixed by the city council by ordinance. Objection is made to the consideration of this assignment because this ground of insufficiency of evidencie was not mentioned in the motion for new trial. Said motion was filed October 23, 1913. By chapter 136 of the Acts of the Thirty-Third Legislature (Regular Session) which became a law on April 4, 1913, article 1612 of the Revised Statutes of 1911 was amended so as to read as follows: “The appellant or plaintiff in error shall in all cases file with the clerk of the court below all assignments of error, distinctly specifying the grounds on which he relies, before he takes the transcript of record from the clerk’s office; provided, that where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error, and provided further, that all errors not distinctly specified are waived, but an assignment shall be sufficient which directs the attention of the court to the error complained of.”-

By the terms of this act, when a motion for new trial has been filed, the assignments therein shall constitute the assignments of error, but may be repeated by the filing of formal assignments of error. We do not understand this to mean that the formal assignments of error should be literal repetitions of the paragraphs of the motion for new trial, but that such assignments must be based upon the points presented in the motion for new trial, as no authority is given for presenting additional assignments to those mentioned in the motion for new trial. We think it was the intention of the Legislature that if a motion for new' trial be filed all matters relied upon as error should be called to the trial court’s attention in such motion. By the concluding paragraph of the amended article an intention is evidenced to do away with matters of form which do not affect the real merits of an assignment of error, but in this case in the motion for new trial the attention of the trial court was not directed to the particular point now complained of, and, as such paragraphs raise the only questions upon which assignments of error could be predicated, we do not think the last clause of the amendment can be invoked to aid appellant’s third assignment of error. Our attention is directed by the assignment to the error complained of, but, as no such error was hinted at in the motion for new trial, much less distinctly specified, we hold that it was waived. The assignment will not be considered.

Judgment affirmed.


source: Caselaw Access Project

author: RICE, J.

license: Public Domain

text:
    STATE v. SUGARLAND RY. CO.
    (Court of Civil Appeals of Texas. Austin.
    Jan. 28, 1914.

    Rehearing Denied Feb. 25, 1914.)
    1. Railboads (§ 57) — Abandonment of Tract — Poweh.
    In view of Rev. Civ. St. 1911, art. 6550, providing that no railroad shall change its route after the same has been designated by survey, and article 6625, providing that the main track shall not be abandoned or removed after having been constructed and operated, in absence of express legislative grant a railroad company cannot abandon or remove any part of its track after operation has begun.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 124r-126; Dec. Dig. § 57.]
    2. Mandamus (§ 133) — Compelling Opeeation — Remedy.
    Mandamus or mandatory injunction is a proper remedy to prevent a railroad company from abandoning a part of its road after completion.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. § 268; Dec. Dig. § 133.]
    3. Railboads (§ 57) — Removal of Track— Consent of Railboad Commission — Authority.
    The Railroad Commission had no power to permit a railroad company to abandon and remove a part of its track which is being operated; such authority not being given to thé Commission by statute, which is the source of all of its power.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 124-126; Dec. Dig. § 57.]
    4. Railboads (§ 254) — Removal of Track— Penalties.
    Even if the Railroad Commission had authority to make an order directing a Railroad company to replace track removed pursuant to another order of the Commission, a penalty will not be assessed against the company for failure to comply with the order to replace the track, upon requiring it to do so by writ .of mandamus, since it had reasonable grounds to believe it was justified in doing so.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. § 254.]
    Appeal from District Court, Travis County; Charles A. Wilcox, Judge.
    Suit by the State of Texas against the Sugarland Railway Company. From a judgment for defendant, plaintiff appeals.
    Reversed and remanded, with instructions.
    B. T. Looney, Atty. Gen., and Luther Nickels, Asst Atty. Gen., for the State. Lane, Wolters & Storey, of Houston, for appellee.

      Far other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   Statement of the Case.

RICE, J.

The Sugarland Railway Company was chartered in 1893 to run from Sugarland refinery to Areola in Ft. Bend county, where it formed a junction with the Gulf, Colorado & Santa Fé and the International & Great Northern Railways, and, in accordance with said charter, had built and for many years operated its line between said points. Thereafter, during 1911, desiring to abandon and remove about 3½ miles of its track north from Areola Junction, it applied to the Railroad Commission of Texas for this privilege, and obtained permission to do so; but the Railroad Commission, without notice to the company, rescinded its order. In the interim, however, the company had taken up and removed said part of its track, which the Commission then ordered it to replace, and, upon its refusal to do so, this suit was brought by the state to compel said company to restore its track, and operate its railway thereon, as well as to recover a penalty for noncompliance with said order.

. The case was tried before the court without a jury, and, from an adverse judgment, the state prosecutes this appeal, assigning as error the refusal of the court to render judgment in its behalf. The company admitted removal of its track, as alleged, but sought to justify its action by pleading and showing that from Burnside Switch to Areola Junction, from which point the same had been removed, the road had become in bad order, its ties had rotted, and its rails rusted, and there was practically no need for its operation because of the fact that it did not pay operating expenses so far as its local traffic was qpneerned; that it ran through a low, flat, undeveloped country, and that prior to its abandonment the company had procured a charter, and was now operating a branch road, extending from a point about 3 miles north of Areola in a southerly direction, which branch connected with both the international & Great Northern and the Santa Fé Railways, and gave substantially the same service, so far as its connections were concerned, as the old line from Burnside Switch to Areola Junction; that it ran through a fertile, developed, and productive country, furnishing railway facilities to about 1,000 people,, whereas, the abandoned line served only one person, .who was not left without railroad connections, because of the fact that he was adjacent to the line of the Gulf, Colorado & Santa Fé Railway; that prior to the abandonment of said track it had obtained an order from the Railroad Commission, permitting its removal, which had been effected before said order had been rescinded; that to comply with the last order would involve an outlay of $40,000, as well as $10,000 annually to maintain said line; that the local revenues derived from the operation of the abandoned line amounted to about $34 per annum. There was no allegation nor proof, however, showing the revenues arising from the traffic over its connecting lines via Areola.

Opinion.

Before a railway company can be chartered in this state, the persons proposing to form such company shall adopt and sign articles of incorporation, which, among other things, shall contain a statement of the places from and to which it is intended to construct the proposed railroad, and the intermediate counties through which it shall extend, stating the time of commencement and the period of the continuation of the proposed corporation (subds. 2 and 4, art. 6408, Rev. St. 1911), which, when so prepared, adopted, and signed by its stockholders, shall be submitted to the Attorney General for his approval, and, when obtained, shall be filed in the office of the Secretary of State. In the instant case, these requirements had been complied with, and the road had been actually built and for many years in operation between Areola Junction and Sugarland, the termini named in its charter, when abandoned.

We have been unable to find any provision of law, and our attention has been directed to none, expressly authorizing a railway company in this state, under any circumstances, to abandon and remove its track; but, on the contrary, we find statutes which, by implication, at least, seem to indicate that no such power was ever contemplated. Article 65S0, R. S. 1911, provides that “every railroad company organized in this state shall make an actual survey of its ro^te or line for a distance of twenty-five miles on its projected route, and shall designate the depot grounds along said first twenty-five miles before thu roadbed is begun, and no railroad shall change its route or depot grounds after the same have been so designated(Italics ours.) Again, article 6625, Id., which provides for the organization of new companies by the purchasers of the franchises of old ones, contains a proviso to the effect that by such purchase and organization no> right shall be acquired in conflict with the present Constitution and laws in any respect, nor shall the main trade of any railroad onee constructed and operated he abandoned or removed.

The question here presented, so far as we are advised, has never been passed upon by the courts of this state; but ample authority is found in the decisions of other states of the Union to the effect that prior to the location, establishment, and operation of a railway company it would have the right, within its discretion, to change or alter its route; but, when its route has been selected and designated, and it has actually constructed its road, and begun operation thereover, such right no longer exists. And this doctrine seems to' be well settled, and in conformity with an almost unbroken line of decisions in this country as well as in England. See 2 Elliott on Railways, § 930, wherein, among other things, it is said: “Once located it is said a railroad is permanently located for the whole term of its existence, subject only to the exception of a specially granted, express legislative enactment authorizing a change or relocation.”

In the note to Lusby v. Kansas City, Memphis & Birmingham R. R. Co., 36 L. R. A. 510, it is said: “With the exception of the Mississippi & T. R. Co. v. Devaney, 42 Miss. 555, 2 Am. Rep. 608, which is now repudiated in Lusby v. K. C., M. & B. R. Co., the authorities are unanimous that, in the absence of express statutory authority, a railroad company cannot relocate its road after it has been once constructed. The Devaney Case held that railroad companies' have the power to relocate the line of their roads after their completion under the first location, and to condemn for the purposes of such relocation private property, if there is manifest necessity for the change, and no detriment thereby accrues to the public. But the uniform current of case law is the other way. Under the English practice there is no power to relocate the route, since it is definitely fixed in the statute creating the company-See statement of the English practice in North Missouri R. Co. v. Lackland, 25 Mo. 515. In Lakeshore & M. S. Ry. Co. v. Baltimore & Ohio C. R. Co., 149 Ill. 272 [37 N. E. 91], it is said that it is well settled that, where the termini and general route of a railroad are prescribed by the charter of the company, leaving the determination of details to its discretion, the power of the company to fix the location of the road is exhausted after such discretion has been exercised, and thereafter the location cannot be changed without specific legislative authority.” After the road has once been located and constructed, the company ceases to possess authority to further select a route, and it cannot therefore vary the route already selected. Brigham v. Agricultural Branch R. Co., 1 Allen (Mass.) 316. After the terminus of the road has been selected and used for 20 years, the company cannot change it. Atl. & P. R. Co. v. St. Louis, 3 Mo. App. 315. The maxim that, if a man once determines his election, it shall be determined forever is applicable to the location of a railroad, so that after such location the corporation cannot make a new location, or abandon the route for a more eligible one. Morris & E. R. Co. v. Central R. Co., 31 N. J. Law, 205. When a company created for the purpose of constructing a railway has located its line, it cannot change the location, and adopt a new route, unless the power to do so is expressly granted to it by the Legislature. Mason v. Brooklyn City & N. R. Co., 35 Barb. (N. Y.) 373; People v. N. Y. & H. R. Co., 45 Barb. (N. Y.) 73. To the same effect is Hudson & D. Canal Co. v. N. Y. & E. R. Co., 9 Paige (N. Y.) 323; Moorhead v. Little Miami R. Co., 17 Ohio, 340, and other cases cited in the note. See, also, 1 Lewis on Eminent Domain, § 402, p. 728; People v. Louisville R. Co., 120 Ill. 48, 10 N. E. 657; Brown v. Atl. & Birmingham Ry. Co., 126 Ga. 248, 55 S. E. 24; Atlantic & B. R. Co. v. Kirkland, 129 Ga. 552, 59 S. E. 220; Leverett v. Middle Georgia R. R. Co., 96 Ga. 392, 24 S. E. 154. In this last case the terminus was fixed by the charter. See, also, 33 Cyc. p. 134.

Appellant contends that, by the acceptance of the charter and the operation of the road thereunder, an implied contract arose for its continuance during the life of the charter, and that, such being the case, its removal was unlawful in the absence of express legislative authority, citing Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 392, 14 Sup. Ct. 1052, 38 L. Ed. 1014, wherein it is said: “Still another matter is worthy of note in this direction. In the famous Dartmouth College Case, 4 Wheat. 518 [4 L. Ed. 629] it was held that the charter of a corporation is a contract protected by that clause of the national Constitution which prohibits a state from passing any law impairing the obligation of contracts. The International & Great Northwestern Railroad Company [meaning the I. & G. N. R. R. Co.] is a corporation created by the state of Texas; the charter which created it is a contract whose obligations neither party can repudiate without the consent of the other. All that is within the scope of this contract need not be determined. Obviously, one obligation assumed by the corporation was to construct and operate a railroad between the termini named.” See, in this connection, 1 Elliott on Railways, § 43, where it seems that the charter, within itself, when accepted and acted under, becomes a contract between the state and the company.

Finding no statute granting to railway companies the right to abandon and remove any portion of their track after the same is located, and none being granted in its charter, and taking into consideration the fact that the Legislature has from time to time granted such right in special cases when applied to (as instanced by the permission granted to the Southern Kansas Railway Company by the Thirtieth Legislature to abandon a portion of its line running from Washburn to Panhandle — see Session Laws of 1907, p. 99 — and other instances not necessary to enumerate), we hold that, in the absence of express legislative grant, no railway company is authorized to abandon or remove any part of its track, and that the abandonment and removal in the present case was therefore unlawful.

Appellant further contends that the court srred in refusing to grant it a mandamus or mandatory injunction, on the ground that the appellee had violated its charter and contractual duty owed to the state and the public thereunder, and refused to perform said duty, whereby appellant was entitled to the issuance of such writ, citing, in support of such contention, Rex v. Severn & Wye Ry. Co., 2 Barnwall & Alderson’s Rep. 646; Railway Co. v. Davis, 2 Dev. & B. (19 N. C.) 469, cited in State v. Southern Pac. R. Co., 24 Tex. 124; People v. Albany & Vermont Ry. Co., 24 N. Y. 261, 82 Am. Dec. 300; Id., 19 How. Prac. (N. Y.) 523; Id., 37 Barb. (N. Y.) 216; Id., 24 N. Y. 261, 82 Am. Dec. 295; Attorney Gen. v. West Wisconsin Ry. Co., 36 Wis. 466; Id., 34 Wis. 204; People v. Troy & Boston Ry. Co., 37 How. Prac. (N. Y.) 427; 6 Barn. & Cress. 181; King v. Stacy, 1 Term, 1; Whitemarsh Tp. v. Philadelphia, G. & N. R. Co., 8 Watts & S. (Pa.) 365; Bates v. Conkling, 10 Wend. (N. Y.) 393.

It is said that mandamus is the proper remedy to prevent a railroad company from' abandoning a part of its road after completion. See 1 Elliott on Railways, § 638; Chicago Ry. Co. v. Crane, 113 U. S. 424, 5 Sup. Ct. 578, 28 L. Ed. 1064; Talcott v. Pine Grove R., 1 Flip. 145, Fed. Cas. No. 13,735; 2 Elliott on Railways, 1056; People v. Railway Co., 28 Hun (N. Y.) 543; Railway Co. v. Hall, 91 U. S. 343, 23 L. Ed. 428. See, also, in this connection, A. & A. on Corporations, § 707; 16 Eng. Law & Eq. 299; 18 Id. 222.

We do not believe that the order of the Railroad Commission authorizing the removal and abandonment of said portion of the track justified the company in doing so, because the Railroad Commission, in our opinion, had no power to grant such removal. The Commission is a creature of the statute, based upon constitutional provision for the establishment of an agency in this state, with such powers as may be deemed adequate and advisable. Section 2, art. 10, Const, of Texas. Being a creature of statute, with such powers only as the Legislature deemed adequate and advisable, it could deraign no authority by implication or from the common law. See Railroad Commission v. G., H. & S. A. Ry. Co., 51 Tex. Civ. App. 447, 112 S. W. 353. An order of the Commission, to be valid, must be based upon some express provision or delegation of power made by statute. R. R. Com. v. G., H. & S. A. Ry., supra; I. & G. N. R. R. Co. v. R. R. Com., 99 Tex. 332, 89 S. W. 961. We think that, before the appellee could claim the protection of such order, it must be able to put its finger upon the statute conferring upon the Commission the authority to make the same, which has not been done. The Commission in revoking its order expressly states that it is done on the ground that it -had no authority to make the order in the first instance. Besides, it seems to have been made under the representation by the company that there would be no objection thereto; but, on the contrary, it appears that a vigorous protest to the removal had subsequently been made.

Although we think it becomes our duty to reverse the case, because we conclude that the company had no right to remove and abandon the track in the absence of express legislative authority to do so, still we are not disposed to grant the full relief prayed for by the state — that is, award both the issuance of the writ of mandamus or mandatory injunction and assess a penalty for the violation of the order of the Railroad Commission directing the replacement of the track by the company — because, even if the Commission had the authority to make such order, which we do not decide, still, since the company had removed the track by its sanction, it could not be held to have willfully done so, for it had reasonable grounds therefrom to believe that it was justified in so doing.

We therefore reverse and remand the case, with instructions to the trial court to award the writ of mandamus or mandatory injunction, requiring the company to replace said track, and operate its line thereover.

Reversed and remanded, with instructions.


author: CARL, J.

text:
    GUADALUPE COUNTY et al. v. POTH et al.
    (Court of Civil Appeals of Texas. San Antonio.
    Feb. 18, 1914.)
    1.MUNICIPAL CORPORATIONS (§ 1) — NATURE and Characteristics.
    The word “town” implies the idea of a considerable number of people living in close proximity, as distinguished from a rural settlement, but does not necessarily imply incorporation.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent.Dig. §§ 1, 1½ ; Dec.Dig. § 1. For other definitions, see Words and Phrases, vol. 8, pp. 7019-7029, 7817, 7818.]
    2.Adverse Possession (§ 8) — Property Subject — Law oe Town — Unincorporated Town.
    The proviso of Rev. Civ. St. 1911, art. 5683, proyiding that no person shall acquire by adverse possession title to any part of a street belonging to any town, “provided this law shall not apply to any alley laid out across any block or square in any city or town,” applies to an unincorporated town, so that limitations would run against a town ⅛ favor of one holding adverse possession of an alley therein, which, was fenced.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 14, 27, 43-57; Dec. Dig. § 8.]
    3. Adverse Possession (§ 114) — Sueficien-cy oe Evidence.
    Evidence helé to sustain a finding that defendants had acquired title to certain lots including the alley in a town by adverse possession.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 682, 683, 685, 686; Dec. Dig. § 114.]
    4. Adverse Possession (§ 19) — Notice oe Olaim.
    Fences placed across an alley m a town were sufficient to put the county oñ notice of an adverse claim to the alley" by the person placing it.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 99-105; Dec. Dig. § 19.]
    5. Adverse Possession (§ 58) — Nature oe Holding.
    . In order to create a title by limitations, the holding must be adverse.
    [Ed. Note. — For other cases, see Adverse Possession, Cent Dig. §§ 279-281; Dec. Dig. §

    6. Adverse Possession (§ 113) — Admissions.
    An admission made by one of plaintiffs’ grantors before the 10 years in which plaintiffs claimed limitations had matured, would not affect plaintiffs’ title by limitations.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 669, 671-681; Dec. Dig. % 113.]
    7. Municipal Corporations (§ 325) — Alleys— Opening.
    Where the evidence showed that a strip was platted as an alley, and the commissioner’s court ordered it opened as such, the court could assume that the strip was an alley, in an action in which it was claimed by adverse possession, and refuse to submit that question to the jury.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 847-849 ; Dec. Dig. § 325.]
    A Boundaries (§ 20) — Property Conveyed —Alley.
    A deed conveying lots adjoining an alley passes title to the center of the alley.
    [Ed. Note. — For other cases, see Boundaries, Cent. Dig. §§ 123-130, 132; Dec. Dig. § 20.] 9. Evidence (§ 390*) — Parol Evidence — Varying Deeds.
    Where -plaintiffs claimed under the 10 years’ limitation and not under a deed, evidence by plaintiff that the lots, which included what defendants claim is an alley, were all under fence when he bought them, and that he had possession thereof for 12 years, was not objectionable as varying the terms of the deed which contains a reference to a plat and map calling for an alley.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. §§ 1719-1721, 1723-1728; Dec. Dig. § 390.]
    Appeal from District Court, Guadalupe County; M. Kennon, Judge.
    Suit by N. Poth and another against Guadalupe County and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.
    See, also, 153 S. W. 919.
    H. M.* Wurzbaeh, E. E. Fischer, and J. M. Woods, all of Seguin, for appellants. J. B. Dibrell, Emil Mosheim, and Seidemann & Short, all of Seguin, for appellees.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   CARL, J.

On March 18, 1912, Dr. N. Poth and Gus Bornemann brought this suit against the county judge and commissioners’ court of Guadalupe county to enjoin them from opening or seeking to open a certain 20-foot alley situated in the town of Marion in that county, which alley runs through block 23 in said town. The court granted the temporary injunction prayed for, and upon final trial and verdict by a jury the injunction was perpetuated and judgment entered accordingly, from which judgment this appeal is taken. Poth owns lots 1, 2, 3, 4, 5, 28, 29, 30, 31, and 32; and Bornemann owns lots 13, 14, 15, 16, 17, 18, 19, and 20, all in the same block. The lots are on opposite sides of the alley in question.

The plaintiffs allege that they and those under whom they claim have had said alley fenced and have been holding, claiming, and using the same adversely for more than 20 years before the filing of the suit, and that they have title by 10 years’ limitation to said alley, and that said alley had never been used by the public, and had never been cleared of brush nor in any manner improved or dealt with by Guadalupe county as a public alley, road, or street.

The whole controversy, when boiled down, is one of limitation and as to whether arti-ele 5683 of the Revised Statutes of 1911 applies to an alley in an unincorporated town.

It seems that T. W. Pierce owned the land, upon which Marion is situated, in the year 1877, and about that time the Galveston, Harrisburg & San Antonio Railway Company built through there. The land at that time was not worth as much as it sells for now, and Pierce cut this up into lots and blocks, and he and his trustees, or successors, continued to sell out the lots; but the plat was never placed of record until July, 1911, when some parties bought some of the lots, and a plat of the town was attached to the deeds which they had recorded. This plat shows a 20-foot alley, the one in controversy.

Dr. Poth bought his part of the property from Dr. L. Hirshfield in 1910 and has since occupied the same. Dr. Hirschfield says he bought the property from Hermann T. Wolff in 1888, or 1889, and that most of the improvements were there then, and that the alley was fenced in at that time with the other. Hirshfield says that he bought lots 28, 29, and 30 a couple of months after he bought' lots 1, 2, 3, 4, and 5 and fenced them all in together. There was a house, drug store, stables, and cistern on it. He says it was all fenced when he bought it, but that he tore down the fence between lots 28, 29, and SO and the other and fenced it all in together. And he says he kept possession of all of it until he sold to Dr. Poth, which was in 1910, and during all that time he claimed the entire property, and it was never claimed by any one else. Mr. Love and Mr. Klein spoke to him about it, but he refused to open it, saying it belonged to him. These lots formed about a square, and the fence took in the alley between the lots on each side of the alley. He says, “I had it in my possession for over ten years before I sold to Dr. Poth, and I claimed it during all that time.”

Bornemann says that he bought his property from Mrs. Ashby, formerly wife of Ed Haenel, in 1901 or 1902, and that Haenel and wife lived in the same residence he now lives in. The deed from Haenel is dated August 3, 1901, and Bornemann moved in a short while after. This deed embraced 17 lots in block 23, and they are located on the east side of the block, and they extend from the north to the south side of the block and include the alley. Mrs. Ashby was occupying the property at the time he bought it. He says he does not know who occupied it all of about 15 years that Haenel owned it, but that, for about five years before he bought it, Haenel lived on it, and after his death Mrs. Haenel moved away and rented the property. When he first knew the place, it was fenced with a string of picket fence. He says: “I know that fence has been there for at least 25 years, if not longei. At the time I bought that' property, in 1901, I moved on it and took possession of it with my family, my wife and three children.. All my property was inclosed when I took possession of it there in 1901, and I claimed it all, and there never was any street or alley through it.” The witnesses all agree that the county never worked the streets and that big mesquite trees are in them. About the time the suit was filed, the county, it seems, did a little work on some of the streets in the town.

John Hicks, a merchant of Marion, who had lived there since 1886, says that, to the best of his recollection, Haenel’s part was fenced at the time; but the western part was not fenced until two or three years after that. He says: “That entire block 23 has been fenced and occupied, within my knowledge, for about 23 years, and there has never been an alley claimed or worked or recognized through that block, to my knowledge. Ed. Haenel occupied the premises that Mr. Bornemann purchased up to the time of his death, which was in November, 1895, and after he died his family lived there a while, about two months, and then the property was rented to Mr. Maddox. I don’t remember that the property was vacant any considerable length of time after Mrs. Haenel left. I don’t know how long Dr. Wolff lived on the part of block 23 that he improved and occupied, but I should judge about 10 years, and he sold to Dr. Hirshfield, and he occupied the property then, and he occupied it 10 or 11 years, and he sold it to Dr. Poth, who occupied it after Dr. Hirshfield left, and it is now occupiéd. I think Dr. Wolff had possession of about one-third of block 23, the western portion, and his fence extended from north to south, the entire distance of the block, and he used it for a residence and had horse lots on it.”

We deem this a sufficient statement of the evidence, and such other as may be necessary will be given in connection with the discussion that follows.

Article 5683 reads: “The right of the state shall not be barred by any of the provisions of this chapter, nor shall any person ever acquire, by occupancy or adverse possession, any right or title to any part or portion of any road, street, sidewalk or grounds which belong to any town, city or county, or which have been, donated or dedicated for public use to any such town, city or county by the owner thereof, or which have been laid out or dedicated in any manner to public use in any town, city or county in this state: Provided, this law shall not apply to any alley laid out across any block or square in any city or town.”

But appellants contend that the exception in the foregoing article only applies to an incorporated city or town, and, since the town of Marion is not incorporated, the proviso in the article quoted does not apply.

The word “town” carries with it the idea of a considerable number of people living in close proximity, and as distinguishable from a rural settlement State v. Edison, 76 Tex. 302, 13 S. W. 263, 7 L. R. A. 733. But whether the town is incorporated mates no difference. There are numbers of good-sized towns not incorporated, and some that are incorporated where that is about all the claim they have to being a town. In regard to the question of urban and rural homesteads, this question has often been up, and there it is not deemed of importance. Posey v. Bass, 77 Tex. 512, 14 S. W. 156; Wilder v. McConnell, 91 Tex. 600, 45 S. W. 145. It is admitted that Marion is not incorporated.

The proviso in article 5683, “This law shall not apply to any alley laid out across any block or square in any city or town,” applies to Marion, and limitation would run in favor of the holders of the strip of land, just as it would against an individual. Folsom v. City of McGregor, 10 Tex. Civ. App. 555, 30 S. W. 846; Johnston v. Llano County, 15 Tex. Civ. App. 421, 39 S. W. 995. And the fact that the town is not incorporated would not alter the case. Williams v. Willis, 84 Tex. 398, 19 S. W. 684; Iken & Co. v. Olenick, 42 Tex. 197.

The evidence was ample to show title under the ten years’ statute of limitation in Dr. Poth and Mr. Bornemann at the time the suit was filed, and the jury’s finding on that question is final.

Appellant contends that the judgment is not justified under article 5682 of the Revised Statutes because no privity is shown between appellees and others who held said premises, and we are cited to Dotson v. Moos, 58 Tex. 152. But the facts in this case do show that the appellees and those under whom they claim did have peaceable and adverse possession of the property for more than ten years before the suit was filed, and, as will be seen from the statement of the evidence, there is privity of estate and continuity of possession. Coleman v. Thurmond, 56 Tex. 514, City of Corsicana v. Zorn, 97 Tex. 317, 78 S. W. 924, and Krause v. City of El Paso, 101 S. W. 828, do not apply here, because title by limitation is pleaded and proven to an alley, and the exception in article 5683 is that “this law shall not apply'to any alley laid out across any block or square in any city or town.” We are not dealing with a Street, but with an alley which comes squarely within the exception or proviso, and limitation applies. Appellant contends that the evidence shows that Guadalupe county actually accepted the plat as early as 1892 by working some of the streets. Suppose it did, how does that help matters, if limitation runs against the county as to an alley and that alley is fenced? . Can the county stand idly by and see parties holding its alleys under fence and claiming them, and then not be bound by the operation of limitation under the plain letter of the statute? We think not.

The alley was fenced and was being held, claimed, and used by appellees and their immediate grantors for more than ten years. Their fences were of themselves enough to put the county upon notice of their adverse claim, and in addition to that the testimony is sufficient to remove any doubt as to the character of their holding.

There is no doubt that the holding must be adverse to mature title by limitation (Chance v. Branch, 58 Tex. 490), but we think this has been shown. What more could be asked when the parties who have held the property swear positively that they not only had the alley fenced for more than ten years, but were claiming it the while?

An admission made by one of the grantors prior to the ten yéars in which limitation was matured, if made, would not affect the limitation title here established by ap-pellees. Bruce v. Washington, 80 Tex. 372, 15 S. W. 1104.

When Commissioner Hartman spoke to Bornemann about opening the alley in October or November, 1911, he asked for time to see what his rights were, and it is contended that, because he did not then say he claimed the property, he was not asserting ah adverse claim. But he says he wanted to find out what his legal rights were, and that is why he asked for time. The very fact that he said he wanted to go to law about it to find out his rights would deem to be sufficient to notify any reasonable person that he claimed it, for people do not litigate about matters, as a rule, to which they make no claim.

What we have said disposes of the first six assignments adversely to appellants.

The court did not err in charging the jury that it was proven as a fact that the 20-foot strip in controversy was an alley. The uncontroverted evidence shows that in the plat of Marion made by T. W. Pierce in 1877, under which the county claims, this strip is an alley through block 23. It was marked as an alley upon the plat and no question was made as to that, and the order of the court called it an alley when it was ordered opened. If the plat calls it an alley, and- the commissioners’ court call it one and seeks to open it as such, the trial court has a right to assume that it is an alley. And the court did not err in refusing to submit that issue to the jury. The seventh and eighth assignments are overruled.

Where lots border on an alley, a deed conveying them passes title to the center of the alley as effectually as though included in the deed. Emerson v. Bedford, 21 Tex. Civ. App. 262, 51 S. W. 889; Bond et al. v. T. & P. Ry. Co., 15 Tex. Civ. App. 281, 39 S. W. 979. It was agreed by the parties that practically all the deeds out of the Pierce estate, describing the property conveyed, refer to a plat and map, which was not put on record till 1911, and that the lots on block 23 are described by numbers and reference to the map and plat. The ninth assignment is overruled.

The court did not err in giving paragraphs 8 and 9 of the charge. Paragraph 8 is: “If you find from the evidence that on the 16th day of April, 1912, the plaintiff N. Poth, and those under whom he holds by privity of estate, had had peaceable and adverse possession of the portion of the alley in question claimed by him. cultivating, using, and enjoying the same for a period of ten years, you will find for the said plaintiff Poth.” And No. 9 is the same except made applicable to Gus Bornemann instead of Dr. Poth. The objection is that there was no privity of estate shown between appellees and their respective vendors, so far as the 20-foot strip in controversy is concerned. But we have seen that the entire alley was fenced by them and their vendors for more than ten years and claimed all the time. The tenth assignment is overruled.

We have examined assignments 11 to 14, inclusive, and, finding them without merit, same are overruled.

The fifteenth assignment complains that the court erred in permitting Gus Borne-mann to testify, substantially, that his lots, were all under fence when he bought, and that he had possession thereof for 12 or 13 years. The objection is that the deed would be the best evidence of what he bought, and that the deed shows a reference to a plat and map calling for an alley, and that, since it calls for an alley, this would be varying the terms of a written instrument by parol testimony. This witness, and others who gave similar testimony, certainly could say what he had fenced and claimed. This is not varying a written instrument. The deed really has little to do with the matter, for, ns we understand, title is not claimed under a deed which would mature title in five years, but the claim is under the ten years’ limitation statute, which does not require any deed. This and the sixteenth assignment, which is of like nature, are overruled.

This court was in doubt as to whether appellants’ assignments should be considered, since they do not comply with the rules; but we have carefully considered all of them and do not find anything that would justify a reversal.

The judgment is therefore affirmed.


author: JENKINS, J.

text:
    OVERTON v. COLORED KNIGHTS OF PYTHIAS et al.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 11, 1914.)
    1.Appeal and Ebboe (§ 757) — Briefs—Assignments of Ebboe — Copying Motion fob New Tbial.
    Acts 33d Leg. c. 136, providing that, where .a motion for new trial is filed, the assignments therein shall constitute the assignments of error and need not be repeated by the filing of assignments of error, does not dispense with the necessity of copying into appellant’s brief such parts of the motion as are relied on as assignments of error, or abrogate Court of Civil Appeals rules 23, 39 (142 S. W. xii, xiii), requiring the record to contain assignments of error, and making a failure to file such assignments and briefs in the trial and appellate courts ground for dismissing the appeal, and hence pretended assignments of error cannot be considered, where the grounds of the motion for new trial are not copied in appellant’s brief.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3092; Dec. Dig. § 757.)
    2. Appeal and Eebob (§ 719) — Assignments of Eebob.
    If a request for filing conclusions of fact and law was made after the motion for new trial was overruled, so that the failure to comply therewith could not be set out in such motion, a distinct assignment of error thereon, filed with the clerk of the trial court as required by the statute and rules prior to 1911, should be made in order to review such refusal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. § 719.]
    3. Appeal and Eebob (§ 742) — Peesentation Below.
    An assignment of error in not filing conclusions of law and fact when requested cannot be considered, where not supported by a statement or proposition, and there is no bill of exceptions showing a request to file such findings or failure to do so, or reference to the record indicating such a request, or that the trial court’s attention was called thereto.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    Error to Travis County Court; Wm. Von Rosenberg, Jr., Judge.
    Action between Annie Overton and the Colored Knights of Pythias and others. To review an adverse judgment, the first-named party brings error.
    Writ of error dismissed.
    D. R. Pickens, of Austin, for plaintiff in error. Hart & Patterson, of Austin, for defendants in error.

      For other cases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   JENKINS, J.

Defendants in error object to the consideration of the brief of plaintiff in error, and this objection must be sustained. No assignments of error were filed in the court below. Articles 1612 and 2113, R. S. 1911. Chapter .136 of the Acts of the Thirty-Third Legislature, p. 276, provides that “where a motion for new trial has been filed that the assignments therein shall constitute the assignments of error and need not be repeated by the filing of the assignments of error.” Under this statute the motion for a new trial becomes the assignments of error, but this does not dispense with the necessity of copying in the brief such portions of the motion for a new trial as are relied upon in this court as assignments of error. This statute does not abrogate rules 23 and 39 for the government of Courts of Civil Appeals, which require that the record shall contain assignments of error, as required by the statute, and that the failure of plaintiff in error to file assignments of error and briefs in the lower court and the appellate court in the time and manner prescribed by the rules shall be grounds for dismissing the appeal or writ of error for want of prosecution. The assignments of error relied upon must still be copied in the brief, though such assignments be found only in the motion for a new trial.

The plaintiff in error has filed a brief in this court, in which alleged assignments of error are set out, but there is not copied therein a single one of the grounds of the motion for new trial, arid therefore the pretended assignments of error cannot be considered by this court. Witherspoon v. Crawford, 153 S. W. 633, 634; Railway Co. v. Reiner, 21 S. W. 1013; Smith v. Smith, 107 S. W. 888; rules 23 and 39 (142 S. W. xii and xiii).

The first pretended assignment of error is that: “The trial court erred in not filing his conclusions of facts and law, when requested to do so by counsel for the appellant.” If such a request was made after the motion for a new trial was overruled, of course the failure to comply therewith could not be set out in the motion for new trial. In such case there should be a distinct assignment of error as to this matter filed with the clerk of the trial court, as required by the statute and rules prior to 1911.

There is no statement and no proposition under this assignment of error, and no bill of exceptions showing that the trial judge was requested to file findings of fact and conclusions of law, or that he failed to do so. There is no reference by way of argument, or in any other portion of the brief of plaintiff in error, to any part of the record indicating that the court was requested to file findings of fact and conclusions of law, or that the attention of the court was called to such request. That this assignment cannot be considered under such circumstances is too well settled to require citation of authorities.

For the reasons stated, the motion of defendants in error to strike out the brief of plaintiff in error is sustained, and this cause is dismissed for want of prosecution.

Writ of error dismissed.


author: KEY, C. J.

text:
    IOWA MFG. CO. v. WALCOWICH.
    (Court of Civil Appeals of Texas. Austin.
    Feb. 18, 1914.)
    1. Appeal and Error (§ 759) — Assignments op Error — Copying.
    Under Court of Civil Appeals Rules, rule 27 (142 S. W. xii), requiring appellant to copy in his brief each assignment of error relied upon, and other rules requiring each assignment to be so presented in the brief that the appellate court can ascertain therefrom, and from the propositions and statements, the particular question to be decided, it is improper for appellant’s brief to give the substance of assignments of error instead c-of copying them.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3094; Dec. Dig. § 759.]
    2. Appeal and Eeeob (§ 1002) — Verdict— CONCLUSIVENESS.
    The Court of Civil Appeals will not disturb a verdict upon conflicting evidence.
    [Ed. Note. — For other cases, see Appeal and Error. Cent. Dig. §§ 3935-3937; Dec. Dig. § 1002.

    Appeal from Caldwell County Court; J. T. Ellis, Judge.
    Action by Oscar Walcowich against the Iowa Manufacturing Company. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    G. W. Mendell, of Austin, and E. B. Coop-wood, of Lockhart, for appellant. T. B. Monroe and J. B. Hatchitt, both of Lockhart, for appellee.

      For other oases see same topic and section NUMBER In Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   KEY, C. J.

Appellee, the keeper of a livery stable in the town of Luling, brought this suit and recovered a judgment for $83 as compensation for boarding two horses belonging to appellant for 83 days. The plaintiff also sought to foreclose a lien on the two horses and certain other personal property, but no lien was foreclosed by the judgment. The case appears to have originated in a justice’s court, but was appealed to and finally tried in the county court; and it is from a judgment rendered by the latter court that this appeal is prosecuted.

Rule 27 for the government of Courts of Civil Appeals (142 S. W. xii) requires an appellant or plaintiff in error, in preparing the ease for submission, to copy in his brief each assignment of error relied upon for a reversal; and other rules relating to briefs require that each assignment shall be so presented in the brief as that the appellate court can ascertain from the assignment, the proposition and statement made thereunder, the particular question to be decided without an examination of the record. In this case the appellant’s brief fails to comply with any of these rules. In most instances the brief undertakes to submit two assignments together; and, instead of copying the assignments, it endeavors to give their substance in condensed form. But for the rule which requires the assignments to be copied, the course pursued might, in many instances, be satisfactory, but that affords no reason for disregarding the rule. Overton v. Colored Knights of Pythias, 163 S. W. 1053, recently decided by this court. As presented in appellant’s brief, two of the assignments complain of certain specified paragraphs of the court’s charge, but the brief neither copies nor states the substance of the paragraphs complained of, but merely refers to the pages of the transcript where the same can be found; and this is true as to all the other assignments, with the possible exception of those which complain of the verdict. However, we have carefully read the statement of facts, the main charge of the court, and charges given at the request of appellant, and have reached the conclusion that, when the main charge is considered in connection with the requested instructions that were given, the jury must have understood that the rights of the parties depended upon the issues of fact clearly and distinctly submitted to the jury in the first special charge requested by appellant and given by the court, which charge reads as follows: “If you find from the testimony in this case that, after said horses had been placed in plaintiff’s stable, plaintiff had knowledge that the team of horses were the property of the defendant, and that the man Taylor had been discharged by the defendant, and that, after Taylor had been discharged, the defendant demanded of the plaintiff the possession of said horses and offered to pay and was ready to pay all charges then due on said horses for their keep, and was ready and able to pay the same, and that the plaintiff under the orders of the man Taylor refused to surrender the possession of said horses to the defendant, then you are instructed that the defendant would be liable only for the amount due up to the time defendant demanded the possession of said horses and offered to pay for their keep.”

Upon the issues there presented, there was conflict in the testimony, and therefore we decline to disturb the verdict of the jury.

Judgment affirmed.


author: TALBOT, J.

text:
    HARTZOG et al. v. SEEGER COAL CO.
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 31, 1914.
    Rehearing Denied Feb. 28, 1914.)
    1. Appeal and Error (§ 100) — Decisions Review able — Injunction.
    Rev. Civ. St. 1911, art. 4644, gives no right of appeal from an order refusing to dissolve an injunction, but allows an appeal only from an order granting or dissolving a temporary injunction, in which case the transcript must be filed in the appellate court within 15 days after the making and entering of such order. In a suit to enjoin defendants from the prosecution of a pending action, the court, on September 24th, entered a temporary restraining order, which provided that, after plaintiff .had filed a proper bond, the order would issue, and that defendants should be notified to show cause why such order should not be continued in force and the other relief prayed for be granted; and, on October 3d, after a hearing, the former order was made permanent, from which order defendants appealed and filed a transcript on October 14th. Held, that the first order was only intended to operate pending the hearing so that the appeal was from an order granting a temporary injunction, and that, the transcript having been filed in time, the appeal would not be dismissed.
    [Ed. Note. — For other cases, see Appeal and Error, Gent. Dig. §§ 670-680; Dec. Dig. § 100.]
    2. Injunction (§ 150) — “Restraining Oe-dee.”
    A “restraining order” is an interlocutory order, made by a court in equity upon an application for an injunction and as part of the motion for a preliminary injunction, by which the party is restrained pending a hearing of the motion.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. § 335; Dec. Dig. § 150.

    For other definitions, see Words and Phrases, vol. 7, pp. 6183, 6184.]
    3. Landlord and Tenant (§ 63) — Defenses —Fraud.
    Defendant, in an action of forcible detain-er, may prove any facts not inconsistent with the title under which he went into possession, such as fraud affecting the right of possession, and showing that his right to occupancy existed when suit was brought, although such fact may be connected with the title.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 159-163, 165-167, 169, 172-176; Dec. Dig. § 63.]
    4. Landlord and Tenant (§ 63) — Defenses —Subsequently Acquired Title.
    Defendant, in an action of forcible detain-er, may show that, subsequent to his entry under a lease, he has himself acquired the lessor’s title, either from the lessor or from some one else, as title under an execution sale against the lessor, and thus indirectly raise the question of title.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 159-163, 165-167, 169, 172-176; Dec. Dig. § 63.]
    5. Landlord and Tenant (§ 68) — Attornment.
    A tenant in possession may lawfully attorn to a third party who has purchased the landlord’s title at execution sale.
    [Ed. Note. — For other cases, see Landlord and Tenant, Gent. Dig. §§ 158, 210-214; Dec. Dig. § 68.]
    6. Injunction (§ 26) — Grounds—Adequate Remedy at Law.
    Where defendant, in an action of forcible entry and detainer, could set up the fact of fraud affecting the right of possession, but only incidentally involving the title, there was an adequate remedy at law, and hence the action would not be enjoined on the ground that there was such a defense.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 24-49, 54-61; Dec. Dig. § 26.]
    7. Courts (§ 472) — Concurrent Jurisdiction of Justice Court and District Court.
    A lessor suing for possession in a district court is not thereby precluded from suing in the justice court in an action of forcible detainer to recover possession, since, while the district court is an appropriate tribunal for the trial of the mere right to possession, its jurisdiction in this respect is concurrent with that of the justice court, so that, two remedies not being inconsistent, may be followed concurrently.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 442,' 451, 459, 465, 619, 1199-1202, 1204^-1224, 1247-1259 ; Dec. Dig. § 472.]
    8. Judgment (§ 891) — Liability — Discharge.
    A satisfaction of a lessor’s action for the possession brought in the district court, or a satisfaction of his action of forcible detainer brought in the justice court, would be a satisfaction as to both remedies.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1702, 1703; Dec. Dig. § 891.]
    9. Abatement and Revival (§ 4) — Penden-cy of Other Action — Effect.
    The doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit on the same cause of action in courts of the same jurisdiction is not enforced in this state.
    [Ed. Note. — For other cases, see Abatement and Revival, Cent. Dig. §§ 25-38; Dec. Dig. § 4.]
    Appeal from District Court, Dallas County; Kennetbi Poree, Judge.
    Suit by the Seeger Coal Company against C. B. Hartzog, J. B. Seeger, and another, for damages and to enjoin Hartzog and Seeger from prosecution of a pending forcible de-tainer suit. Injunction granted, and defendants Hartzog and Seeger appeal.
    Motion to dismiss appeal overruled, judgment reversed, and injunction dissolved.
    Cecil D. Simpson, of Dallas, for appellants. Davidson & Davidson, of Dallas, for appellee.

      For other eases- see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   TALBOT, J.

This suit was instituted in the district court of Dallas county, on September 24, 1913, by the Seeger Coal Company v. C. B. Hartzog, J. B. Seeger, and the Home Investment & Loan Company, to recover damages, and to enjoin J. B. Seeger and appellant C. B. Hartzog from prosecuting a certain forcible detainer suit pending in justice court, precinct No. ,1, Dallas county, Tex., wherein C. B. Hartzog is plaintiff and the Seeger Coal Company and J. B. Seeger are defendants. The day the suit was filed, to wit, September 24,1913, Hon. Kenneth Poree, judge of said district court, issued a temporary restraining order, restraining C. B. Hartzog and J. B. Seeger from prosecuting said suit in said justice court, and on October 3, 1913, in vacation, Judge Poree, after a hearing, entered an order adjudging and decreeing that said temporary restraining order be continued in force, and that said C. B. Hartzog and J. B. Seeger be enjoined from the further prosecution of said forcible de-tainer suit. The fiat of the judge indorsed on plaintiff’s petition is as follows: “When the plaintiff shall have filed a properly conditioned bond in the sum of one thousand dollars the clerk will issue a temporary restraining order prohibiting the prosecution by defendants of said suit in said justice court as prayed; and will issue notice to defendants to appear at 9 a. m. Sept. 29, T3, to show cause why said restraining order should not be continued in force, and the other relief prayed for should not be granted. [Signed] Kenneth Poree, Judge 14th. Dist.” The defendant, Hartzog, appellant herein, in due time answered by general and special exceptions to plaintiff’s petition, and expressly admitting some, and denying other, matters set up in said petition, and closing with a prayer that the temporary order issued by the court herein on September 24, 1913, be dissolved, and that the court refuse to issue any further orders of judgments herein. The hearing provided for in Judge Poree’s order indorsed on plaintiff’s petition was continued from September 29, 1913, by consent of the parties, to the 3d day of October, 1913. On this date a hearing of the matters alleged by plaintiff for the issuance of the injunction prayed for by him was had and judgment rendered, which recites that “the demurrers and exceptions of the defendant Hartzog being duly considered, are overruled, and, the pleadings * * * being read and the evidence introduced and arguments heard, and all duly considered, it is the opinion of the court that the said temporary restraining order heretofore issued in this cause be continued and remain in force. It is therefore ordered, adjudged, and decreed by the court that the said temporary restraining order be continued and remain in force, and that the said defendants O. B. Hartzog and J. B. Seeger, and each of them, and the servants, agents, attorneys, and employSs of each of them, be enjoined and restrained and prohibited, as they have heretofore been, from further prosecution of that certain suit No. 3813, and styled C. B. Hartzog v. J. B. Seeger et al., pending in the justice court of Dallas county, Tex., * ⅜ ⅜ an(j from taking and having entered therein any orders or judgment in the matter of the prosecution of said suit, until the further orders of this court.” The said judgment concludes thus: “To which order and judgment made this, .the said 3d day. of October, A. D. 1913, the defendants C. B. Hartzog and J. B. Seeger except, and in open court gave notice of appeal to. the Court of Civil Appeals of the State of Texas for the Fifth Supreme Judicial District, at Dallas, Tex.”

The first question for decision arises on appellee’s motion to dismiss the appeal. It is contended that it appears from the record sent to this court that the order or judgment appealed from is one refusing to dissolve a temporary injunction, from which no appeal under the laws of this state will lie; that the order granting the temporary injunction or restraining order herein was made and entered on the 24th day of September, 1913, and that the transcript was not filed in this court until the 14th day of October, 1913, more than 15 days after the making and entry of the order granting said injunction or restraining order; hence the transcript was not filed in this court within the time prescribed by law, and therefore, whether the appeal was taken from the order of September 24, 1913, granting said injunction, or the order of October 3, 1913, this court has not jurisdiction to consider the appeal. The statute does not give the right of appeal from an order refusing to dissolve an injunction. An appeal is allowed only from an order granting or dissolving a temporary injunction, and, in such ease, the transcript of the record must be filed with the clerk of the appellate court not later than 15 days after the making and entry of such order. Article 4644, Revised Statutes 1911. If not so filed the appeal cannot be entertained. There is no question but that the appeal in this case is prosecuted from the order of the court made on the 3d day of October, 1913, and the question is whether the order made September 24, 1918, directing that a temporary restraining order be issued and notice be given to defendants, commanding them “to appear September 29, 1913, to show cause why such order should not be continued in force, and the other relief prayed for not be granted,” was a mere restraining order, which was to have effect only until the 3d day of October, 1913, and the order made on that day, - as distinguished from such an order, granting the temporary injunction sought, which was to continue in force during the pendency of the suit, unless sooner dissolved upon motion made for that purpose. If the effect of the first order was to direct the issuance of a temporary restraining order to continue in force only until the hearing to be had at a later date, and the order made October 3, 1913, must be construed to be the granting of the writ prayed for, then the appeal lies, and the motion to dismiss must be overruled.

It is well settled, and so pointed out in Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14, that under the practice of the American courts three species of injunction may be issued, namely: (1) A restraining order, which is defined to be “an interlocutory or-' der made by a court of equity upon an application for an injunction, and as part of the motion for a preliminary injunction, by which the party is restrained pending the hearing of the motion” ; (2) one which is intended to operate, and which does operate, unless dissolved by an interlocutory order, until the final hearing; and (3) a perpetual injunction which can be properly ordered only upon the final decree. It is sufficient to say, without quoting them, that under the articles of our statute relating to the issuance of injunctions, “the judge is authorized to place upon a preliminary injunction such limitations as to the time of its operation as he may see proper.” Riggins v. Thompson, supra. It is obvious, we think, from the judge’s order indorsed on the petition in this case September 24, 1913, the preceedings had, and the judgment rendered October 3, 1913, that the “restraining order” issued on said 24th day of September was intended to operate only pending the hearing to be had at a later date for the purpose of preserving the statu quo of the parties, and that the date of the granting of the temporary injunction prayed for was October 3, 1913. The language of the judge’s fiat, to the effect that the defendant should be notified to appear and show cause why the “restraining order” should not be continued in force should not be construed as a notice to the defendants that the temporary injunction prayed for had been already granted, and that the hearing ordered was simply to give them an opportunity, at the date set, to file and present a' motion to dissolve such injunction. Such a course is not provided for by statute; is foreign to any rule of practice or custom of our courts, and evidently the learned judge who made the order had no intention that it should serve that purpose. The clear inference is that the purpose of the order made September 24, 1913, was simply to restrain the prosecution of- the suit pending in the justice court, until a hearing could be had to determine whether or not the plaintiffs were entitled to the temporary injunction prayed for during the pendency of plaintiff’s suit. It will be noticed that the judge’s order indorsed on the petition September 24, 1913, not only directed that notice be served on defendants to appear September 29, 1913, to show cause why the temporary restraining order should not be continued in force, but that they at said time show cause why “the other relief prayed for should not be granted.” It is obvious from the language of said order here quoted that restraint of the defendants from the prosecution of the forcible detainer suit in the justice court was not all the injunctive relief asked for in plaintiff’s petition, and is significative of the nature and purpose of the order. It indicates that the order, of which it is a part, was not intended to and did not reflect any definite conclusion or final action of the court with regard to the plaintiff’s right to any of the relief sought, but rather that the determination of such rights would be postponed until a "hearing upon proof could be had. As indicated by the language of the order referred to, plaintiff’s petition prays that defendants be enjoined, not only from the prosecution of the forcible detainer suit, but that they be restrained from the commission of other acts which it is charged would injuriously affect plaintiff’s enjoyment of and possession of the demised premises, and certainly the court did not intend to definitely pass on the matters presented by piecemeal, that is, to grant the temporary injunction upon a bare inspection of the petition, and, at the hearing provided for in his order indorsed on the petition, to hear evidence and determine plaintiff’s right to the other prohibitive relief asked.

The case is distinguishable from those cited by appellee. In the ease of Baumberger v. Alien, 101 Tex. 352, 107 S. W. 526, it appears that the judge granted a temporary injunction without providing for a hearing, and that a motion to dissolve was made and overruled. Prom this order an appeal was taken. The transcript was filed in the Court of Civil Appeals within 15 days from the date of the order overruling the motion to dissolve, but not within 15 days from the date of the order granting the temporary injunction. The Supreme Court held on writ of error that no appeal lies from an order refusing to dissolve an injunction on motion, and that an appeal from an interlocutory order granting it must he prosecuted by filing the transcript in the Court of Civil Appeals not later than 15 days after the entry of record of such order. It was further held, in effect, that the language of the order continuing in force the temporary injunction in that case was wholly unnecessary and superfluous, because the injunction was already in force and would so continue without such language.

In the case of Jaynes v. Burch, 151 S. W. 596, the order of the judge granting the temporary restraining order was like the order in this case, except it did not direct that the defendant should appear and show cause why “the other relief prayed for should not be granted.” No relief by injunction was asked in that ease, except that granted in the order made upon inspection of the petition, and the judgment entered upon a hearing recites that the cause “came on to be heard upon defendant’s motion to dissolve the temporary restraining order heretofore granted, and that the court, after hearing the pleadings, evidence, and argument of counsel, was of the opinion that defendant’s motion to dissolve said restraining order should he overruled and refused.” The “restraining order” in that case seems to have been understood and treated as a temporary injunction, and such as had been granted in the case of Baumberger v. Allen, supra, and, as has been seen, the judgment entered on the hearing shows that a motion to dissolve it was made and overruled. Such does not seem to have been the understanding and treatment of the restraining order, and no sueh proceeding appears to have been had, in the case now before us. But if the cases are not distinguishable, then the Jaynes-Burch Case must be overruled. Nor do we think the present case is ruled by Caswell v. Fundenberger, 47 Tex. Civ. App. 456, 105 S. W. 1017, cited by appellee. In that case, as in Baumberger v. Allen, 101 Tex. 352, 107 S. W. 526, it was held, and the facts warranted the holding that the writ originally granted was a “temporary injunction” as distinguished from a “temporary restraining order,” and that the order made subsequently was an order dissolving this temporary injunction. In so holding the court there said, among other things, that both plaintiffs and defendants, by their pleadings, seem to have so understood it (the writ), and such is a fair construction of the order of the judge granting “the writ of injunction as prayed for.” Our conclusion is that under the facts of this case appellee’s contention that this court has not jurisdiction to entertain this appeal cannot be sustained, and the motion to dismiss is therefore overruled.

Having held that we have jurisdiction, the question arises, Did the court err in granting the temporary injunction restraining appellant from prosecuting the forcible detainer suit instituted by him and pending in the justice court? This question is raised by assignments of error complaining of the court’s action in overruling appellant’s general demurrer to appellee’s petition and his special exception thereto, asserting that it is manifest from said petition that appellee has its remedy at law as a defendant in said suit in the justice court, and that said court has jurisdiction to hear and dispose of all material matters set up in this suit for injunction, as a defense to appellant’s alleged cause of action in the suit in the justice court. The propositions contended for by appellant are: That the defendant in an action of forcible detainer may prove any facts not inconsistent with the title under which he went into possession of the property involved, which show that his right still to occupy the same exists at the time such action is brought, although these facts may he connected with the title to the property; that the remedy by injunction in the district court to restrain the prosecution of a forcible detainer suit in a justice court does not lie where the plaintiff in the injunction suit has an adequate remedy at law, which he may set up and avail himself of in the justice court. We think these propositions sound, and may be invoked in this suit. The substance of appellee’s petition is that it leased certain real property from J. B. Seeger, for the period of one year, commencing on the 1st day of April, 1912, and ending on the 31st day of March, 1913, with right to renew same for one year from said April 1, 1913; that said lease was so renewed, and that appellee had complied with all its terms and conditions, and was in the lawful possession of the property under said lease; that on or a short time before the 1st day of April, 1913, the said J. B. Seeger, who was prior thereto, associated with ap-pellee in the wood and coal business, opened up a wood and coal business for his own account, and, without just cause or provocation, conceived the idea of putting appellee out of business, so that he might not have appellee as a competitor; that in furtherance of this purpose the said J. B. Seeger instituted suit No. 14,032A in the district court of the Fourteenth judicial district of Texas, for the termination of said lease and for the possession of said property, and wrongfully, fraudulently, and falsely alleged in his petition that appellee had violated the covenants of said lease; that said suit in said district court was instituted fraudulently, maliciously, and without probable cause, and only for the purpose of getting possession of said property and to harass appellee and to cripple it in its most important yard, wherein was stored its wood and coal; that said suit was filed on the 31st day of May, 1913, and was pending; that said J. B. Seeger, not being willing to rely upon getting possession of said premises by said suit in the district court, said suit not being as summary and rapid as he desired, entered into a conspiracy with the appellant Hartzog and the Home Investment & Loan Company to dispossess ap-pellee of its wood and coal yards, and to deprive it of its leasehold interest therein before the termination of said lease, and to that end the said J. B. Seeger in the name of the Home Investment & Loan Company, in whom he had fraudulently placed the title of said property, pretended to sell and convey said demised premises to the said appellant Hartzog, who, as the instrument of the said J. B. Seeger, on the 18th day of September, 1913, filed an action of forcible detainer in the justice court of Dallas county, Tex., to recover possession of said leased premises; that the sale to Hartzog was fraudulent, and was in fact not a sale of the property, but a simulated transaction for the purpose of laying a predicate for the cancellation of said lease; that appellant Hartzog, pretending to be the purchaser of the said property described in the lease, caused the 90 days’ notice required by the lease to be given ap-pellee, and demanded possession of the property, and, possession being refused, he filed said suit of forcible detainer. It is further alleged, in substance, that the allegations in the suit of forcible detainer were false and fraudulent; that the said Hartzog, plaintiff therein, had no interest whatever in the land or leased premises, and no right to the possession thereof; that said forcible detainer suit was wholly fictitious and fraudulent, and brought by the said Seeger, who dominated and used the said Hartzog, who was his employs, to unlawfully institute and prosecute said suit in the justice court, and in furtherance of the conspiracy to bring about a termination of appellee’s lease and get possession of its wood and coal yard; that by the wrongful and malicious acts of the appellants, appellee has sustained actual damages in the sum of $3,500, and exemplary damages in the sum of $5,000. The prayer of the petition was for an injunction enjoining the prosecution of the forcible detainer suit, enjoining Hartzog and J. B. Seeger from instituting or prosecuting any other suit for the possession of the leased property, and the said Hartzog and Home Investment & Loan Company from making any claim to said property, that plaintiff’s right and title to said leasehold be confirmed, and that it have judgment for its damages, actual and exemplary, and for general relief.

The allegations of the appellee, Seeger Coal Company, for the writ of injunction granted, do not present a case in which the title of the premises leased to it is directly involved. The question of title is presented only as an incident to the issue of appellant’s right to the possession of said premises. The allegations of conspiracy and fraudulent transfer of the property to the Home Investment & Loan Company and appellant Hartzog for the wrongful and unlawful purpose of terminating the lease under and by virtue of which appellee holds, and thereby take from him the possession of said property, discloses, we think, a defense to appellant’s action of forcible detainer, pending in the justice court for possession of the property, which could be set up and urged in that action. In other words, these allegations show that appellee has an adequate remedy at law, which he may avail himself of in the forcible detainer suit. The real issue is one of fraud, affecting the right of possession, in which the title of the property is only, as stated, incidentally involved. If the sale of the demised premises to appellant Hartzog was fictitious and fraudulent, a mere simulated transaction for the purposes charged by appellee, then appellant had no legal right to invoke that provision of the lease, declaring that if the property was sold, the -lease should terminate and by virtue thereof recover possession of said property.

It seems to be very well settled by the decisions of this state that the defendant in an action of forcible detainer may prove any facts not inconsistent with the title under which he went into possession of the property which show that his right still to occupy the same existed at the time the suit was brought, although these facts may be connected with the title to the property. So he may, where he has entered under a lease, show that subsequent to his entry under the lease he has himself acquired the lessor’s title to the land, either from the lessor or some one else. Camley v. Stanfield, 10 Tex. 550, 60 Am. Dec. 219; Texas Land Co. v. Turman, 53 Tex. 621; Andrews v. Richardson, 21 Tex. 287; Gallager v. Bennett, 38 Tex. 295.

In Texas Land Co. v. Turman, supra, it is said that the practical effect of the decision in Camley v. Stanfield, the first case cited, “is to permit a tenant holding over to defend his possession by showing that subsequent to the lease he purchased his landlord’s title under execution sale, and thus indirectly, in such case, to raise the question of title. Subsequent decisions of this court have recognized this doctrine, and it has further been held that the tenant in possession may lawfully attorn to a third party who has purchased at execution sale the title of the landlord” (citing Andrews v. Richardson and Gallager v. Bennett, supra). This doctrine is recognized in other jurisdictions. Brown v. Woolsey, 2 Ind. T. 329, 51 S. W. 966; Folsom v. Hunter, 6 Ind. T. 453, 98 S. W. 156; Richie v. Owsley, 137 Ky. 63, 121 S. W. 1018; Douglas v. Hartzell, 15 Ill. App. 252.

The facts alleged, therefore, did not authorize the issuance of the injunction herein upon the theory that they showed appel-lee was without an adequate remedy at law, or entitled thereto under the provisions of our statute.

Nor do we think the granting of the injunction restraining the defendant from prosecuting the forcible detainer suit was authorized because of the pendency of the suit instituted by J. B. Seeger for possession of the property in the district court, before the filing of said forcible detainer suit' by appellant Hártzog in the justice court. Conceding that under the allegations of the petition in the case now before us J. B. Seeger must be considered to be the real plaintiff in said forcible detainer suit, still the pendency of the suit in the district court would not preclude him from invoking the jurisdiction and aid of- the justice court in an action of forcible detainer to recover possession of the property. While the district court is an appropriate tribunal for the trial of the mere right to the possession of land, its jurisdiction in this respect is merely concurrent with that of the justice court to try such right, and not exclusive. The two remedies not being inconsistent may be employed concurrently, though a satisfaction of one would be a satisfaction of all. Garza & Co. v. Jesse French P. & O. Co., 126 S. W. 906; Bull v. Bearden, 159 S. W. 1177; Rowell v. Smith, 123 Wis. 510, 102 N. W. 1, 3 Ann. Cas. 773.

In the first case cited, Mr. Justice Book-hout, speaking for this court, said: “The doctrine of the common law that a suit pending between parties precludes them from maintaining between themselves another suit on the same cause of action in courts of the same jurisdiction is not enforced in Texas.”

The motion to dismiss the appeal is overruled, and the judgment granting the injunction restraining defendants from prosecuting the forcible detainer suit in the justice court is reversed and said injunction dissolved.