Texas Novelty Advertising Co. v. Bay Trading Co.

206 S.W. 729 | Tex. App. | 1918

This is an appeal by L. J. Thompson and D. W. Campbell, composing the partnership styled the "Texas Novelty Advertising Company," from an order, made in chambers, by the judge of the district court in the Twenty-Fourth judicial district of Texas, refusing to enjoin the Bay Trading Company, a corporation, from the further prosecution of its suit pending in the county court of Calhoun county, Tex.

From appellants' petition it appears that they sued the Bay Trading Company in the justice of the peace court in Hill county, Tex., upon a written contract, and obtained a judgment in that court; that the Bay Trading Company petitioned the county court of Hill county for a writ of certiorari, which was granted and the transcript of the entries was filed in the county court; that the cause was dismissed by the county court of Hill county after the writ of certiorari had been granted.

The petition further alleges that the Bay Trading Company filed a suit involving the identical cause of action litigated as stated above, in the justice of the peace court in Calhoun county, Tex., obtained a judgment in its favor in said Calhoun county, from which the Texas Novelty Advertising Company appealed to the county court of Calhoun county, Tex.

The district court was petitioned by the Texas Novelty Advertising Company to enjoin the Bay Trading Company from the further prosecution of the suit thus appealed by the Novelty Company to the county court of Calhoun county, Tex. The prayer for this injunction is that it "be made permanent, if for no other reason than upon the maxim, `It is for the public good that there be an end to contentions.' "

Appellants contend in this court that they have obtained a final judgment in the cause of action, and that a court of equity will protect them in the enjoyment of the rights acquired by that final judgment and restrain the parties bound by that judgment from causing vexation by a multiplicity of suits. This rule does not apply to the facts of the case set forth in appellants' petition for the injunction, because the appellants have no final judgment rendered in Hill county. The justice of the peace did render a final judgment, but this judgment was vacated when the county court of Hill county granted the petition for a certiorari. The subsequent dismissal of the cause by the county court did not revive the judgment of the justice of the peace of Hill county. Harter v. Curry,101 Tex. 188, 105 S.W. 988; Harper v. Dawson, 167 S.W. 311; Southwestern L. Corp. v. Neese, 161 S.W. 1090.

If the certiorari was dismissed upon one of the grounds provided by statute, and a writ of procedendo ordered issued as provided by article 756, R.S. 1911, it could be contended that the judgment of the justice's court was in full effect was if no effort had been made to take it to the county court; but the petition for injunction leaves the matter in doubt whether such a judgment was entered or whether the cause was dismissed, and in fact the allegations tend more strongly to show that the cause was dismissed than that the certiorari was dismissed. Vernon's Sayles' Civ. St. art. 756; Roberts v. McCamant, 70 Tex. 743, 8 S.W. 543; Miller v. Holtz, 23 Tex. 138. "The rule of pleading that the statements of a party are to be taken most strongly against him is reinforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated, from which it might be deduced that he might not under other supposable facts connected with the subject thus be entitled to relief." Schlinke v. De Witt County, 145 S.W. 660, § 1, and authorities there cited.

It follows from the rule announced by the authorities cited that the granting of the writ of certiorari vacated the judgment of the justice of the peace, and the dismissal by the county court left the parties as they were before any suit was ever filed in any court.

Under these conditions, the Bay Trading Company has the legal right to have its contention adjudicated by a court having jurisdiction of the cause alleged. This right was exercised by filing the suit in the justice court in Calhoun county, which suit was prosecuted to a final judgment in favor of the Bay Trading Company, but which judgment has been nullified by the appeal taken by the Novelty Company to the county court of Calhoun county, Tex., where it is now pending.

There is no allegation in appellants' petition for injunction that the justice of the peace court in Calhoun county did not have original jurisdiction of the cause, nor that the county court of Calhoun county was without appellate jurisdiction. In the absence of these allegations, we must hold that these last-mentioned courts did have jurisdiction.

The Constitution, art. 5, § 19, provides that justices of the peace shall have jurisdiction n civil matters of all cases where the amount in controversy is $200, or less, and article 5, § 16, provides that county courts shall have appellate jurisdiction in cases civil of which justices' courts have original jurisdiction, provided the judgment appealed from shall exceed $20. The amount of the judgment disclosed by appellants' petition for injunction is $95.

Appellants' petition for injunction shows no facts that will confer upon the district court jurisdiction to enjoin the Bay Trading Company from prosecuting the cause appealed by appellants to a final judgment in the county court of Calhoun county. The judgment of the district court, appealed from, is correct.

The judgment is affirmed.