31 S.W. 613 | Tex. | 1895
The plaintiff in error presented its petition to the Hon. A.L. McLane, praying a writ of injunction against J.A. Wright, C.L. Coyner, and John Larcade, in which it was alleged, in substance, that on the 26th day of February, 1894, J.A. Wright, by his attorney, C.L. Coyner, in a suit before James F. Mount, a justice *349 of the peace in Duval County, recovered a judgment against the petitioner for the sum of $100, and for $11.70, costs of court, with interest at 6 per cent per annum from the date of judgment. That on the 17th day of March, 1894, Coyner, as attorney for Wright, procured James F. Mount to issue execution against petitioner, which was placed in the hands of defendant Larcade, acting as constable of precinct number 1 of that county, and instructed the said constable to levy upon property of the petitioner. That on the 21st day of March, 1894, the constable aforesaid demanded of petitioner's agent in San Diego a levy upon property to make the said judgment, and that petitioner's agent pointed out a box car of the reasonable value of $300, which property the said constable refused to levy upon, but levied the execution upon certain lots described in the petition, being the depot grounds of petitioner's railroad, worth $1000.
It was alleged in the petition, that when the said Wright filed his suit before the justice of the peace, citation was issued, directing the sheriff or any constable of the said county to summon W.H. Vannort, agent of the Texas-Mexican Railway Company at San Diego, Texas. That petitioner never appeared, nor in any way answered to the said suit, but that, service having been made upon the said W.H. Vannort, said justice of the peace rendered judgment against the petitioner in the said suit, as before stated, which judgment, the petitioner alleged, was void, because the said justice of the peace had no jurisdiction to render the said judgment as aforesaid.
The district judge granted the writ of injunction, which was issued as prayed for. The defendants appeared and excepted to the said petition upon several grounds, of which the following were sustained: (1) "That the petitioner had not exhausted its legal remedy of appeal from the judgment sought to be restrained;" and (2) "that appellant had not exhausted its legal remedy of certiorari." The petitioner having refused to amend its petition, the injunction was dissolved and the petition dismissed, from which judgment appeal was taken to the Court of Civil Appeals, by which court the judgment of the District. Court was affirmed.
The plaintiff in error presents the case to this court upon three propositions: 1. That the judgment of the justice of the peace against it was void, and therefore that the injunction was properly granted. 2. That the levy upon the real estate belonging to the petitioner, when a levy upon personal property was tendered by its agent, was contrary to law, and that the injunction should have been sustained upon that ground. 3. Because the real estate levied upon was a part of and necessary to the use of the depot and station of the petitioner.
The judgment of the justice of the peace, enjoined in this case, was void, because the court which rendered it had no jurisdiction of the defendant. Railway v. Rawlins,
Article 2287 of the Revised Statutes requires, that in case the defendant in execution shall point out, for levy, personal property, such property shall be delivered into the "possession of the officer." The possession given must be such as places the property under the control of the officer, so that it could be delivered to the purchaser. The allegations of the petition in this case do not show that such possession of the box car was given to the officer in this instance. Ross v. Lister,
Article 10, section 4, of the Constitution, is in this language: "The rolling stock and all other movable property belonging to any railroad company or corporation in this State shall be considered personal property, and its real and personal property, or any part thereof, shall be liable to execution and sale in the same manner as the property of individuals."
The allegations of the petition show, that the land levied upon was the property of the defendant, and the Constitution makes no distinction on account of the use made of the land by the corporation. The question of the right to sell, under execution, depot grounds acquired by condemnation, in which the railroad company has only the right to use it, for that purpose, is not before us in this case.
We find no error in the judgment of the Court of Civil Appeals, and it is affirmed.
Affirmed.
Delivered June 17, 1895.
