| Tex. | Jul 1, 1858
This is a proceeding by injunction, in the District Court, to restrain appellees from prosecuting a suit of “ forcible entry and detainer,” pending in a Justice’s Court.- The grounds upon which this remedy is sought are, 1st. That the land, the possession of which is in controversy, is of the value of fourteen thousand dollars, and the party, in whose right it is claimed in the Justice’s Court, has no valid title to it. 2d. That Ryan, who is the Justice, and the other two appellees, who are the agents of Walter Henry, for whom the suit in the Justice’s Court is prosecuted, are confederating and combining to dispossess the tenant of appellant, by the suit before the said Justice. 3d. Irreparable injury will be inflicted on the tenant’s improvements and crop, the appellees being insolvent.
Upon motion of appellees, the injunction was dissolved for want of equity in the petition, which ruling of the Court was excepted to, and constitutes the principal question in the case.
The appellant, to entitle himself to the equitable interposition of the District Court, must have shown such facts to have existed, as prevented him from making his defence at law in the Justice’s Court. (2 Story, Eq. Jur. Sec. 875.)
1st. The want of jurisdiction would be as available a defence
2d. The mere allegation that Ryan was combining to give the Justice’s Court jurisdiction, merely indicates that he had entertained jurisdiction of the case by issuing process, preparatory to the trial of it. It is not shown that he refused to receive or entertain a plea to the jurisdiction, or in any way obstructed any legitimate defence to the action.
3d. Admitting the appellees to be insolvent, it does not follow that they are thereby prevented from pursuing, as agents of Walter Henry, a remedy prescribed by law, to obtain possession of the land, if it be true that he has the right to it as against appellant. Such a conclusion would shut the door of justice against those who happened to be poor, and therefore most need the protection of the law.
The injunction was therefore properly dissolved even upon the supposition that the petition showed that the Justice’s Court had no jurisdiction of the case.
But the action being for the possession of the land, dependent upon the right of possession, and not upon the ultimate superiority of title, the value of the land being greater than one hundred dollars could not oust the Court of its jurisdiction to try the case. (Hart. Dig. Art. 1431.)
It is contended that the Court erred in determining the motion to dissolve the injunction for want of equity, before entertaining an application for continuance. An order dissolving an injunction is interlocutory, and a motion for such order may be entertained at any time the cause is reached in calling the motion docket, or at the calling of the cause for trial. (Hart. Dig. Art. 1604; Id. Art. 712.)
We think there is no error, and the judgment below is affirmed.
Judgment affirmed.