Gulf, Colorado & Santa Fe Railway Co. v. Bacon

21 S.W. 783 | Tex. App. | 1893

This suit was instituted by appellant in the District Court of Bell County, to restrain and enjoin appellees, W.W. Bacon and T.H. Bacon, from prosecuting two suits against it (one instituted by each appellee) in a Justice Court in Bell County.

The essential averments of appellant's petition are: That on the 11th day of October, 1888, 17 head of sheep, belonging to said W.W. Bacon individually, or to W.W. and T.H. Bacon as partners, were at one time killed by a train on appellant's railway; that the killing of said sheep was without fault or negligence on the part of appellant or its servants, and under such circumstances as excuse it from all liability therefor; that in order to obtain an undue advantage of appellant, and deprive it of its right of appeal, and force it to pay for said sheep, appellees instituted the two suits referred to, one in the name of T.H. Bacon as plaintiff for $19.25, and the other in the name of W.W. Bacon as plaintiff for $19; that although appellant has a good and valid defense to said suits, it is morally certain that said justice of the peace will refuse to consolidate them, and it is alike certain that said justice of the peace, or any jury that can be obtained to serve in his court, will decide against appellant, and it will thereby be wrongfully and unjustly compelled to pay for said sheep and the costs of said two suits.

The facts stated in appellant's petition do not entitle it to the relief sought. It is true, as held in Railway v. Dowe,70 Tex. 10, that the District Court has jurisdiction to enjoin the bringing of a multiplicity of unjust and vexatious suits in a Justice Court, when the aggregate amount or any other fact will preclude the right to have all of them consolidated into one suit. But the opinion in that case recognizes and approves the doctrine, that if the right of consolidation exists the injunction should be refused. If it be true, as averred, that all the sheep killed belonged to W.W. and T.H. Bacon as partners, or to W.W. Bacon individually, then appellant has the right to have the two cases consolidated before trial (Revised Statutes, article 1450); and if cast in the suit after consolidation, it would have the right of appeal to the County Court. Having the legal remedy afforded by consolidation and appeal, appellant is not entitled to equitable relief in a different tribunal from that in which the cases are now pending.

We decide the case upon this question alone, without intimating any opinion upon other questions.

The petition assigns no reason for the averment that appellant's right to consolidate the suits will be denied by the justice of the peace, other than the alleged general incapacity or disinclinations of such magistrates to correctly and justly decide such matters in cases of this kind.

We can not assume, merely because it is charged, that the justice of the peace will refuse to accord to appellant any legal right; and as it appears that by availing itself of a legal remedy no necessity for an injunction will exist, the court below did not err in sustaining a general demurrer to appellant's petition.

We affirm the judgment.

Affirmed.