Ellis v. Harrison

Court of Appeals of Texas

Ellis v. Harrison

56 S.W. 592, 24 Tex. Civ. App. 13

CourtCourt of Appeals of Texas

DecidedMay 7, 1900

StatusPublished

Cited by18 cases

This text of 56 S.W. 592 (Ellis v. Harrison) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Ellis v. Harrison, 56 S.W. 592, 24 Tex. Civ. App. 13 (Tex. Ct. App. 1900).

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ON APPLICATION FOR AN INJUNCTION. The appellants filed suit in the District Court of Fort Bend County to vacate and set aside a judgment of the Court of Civil Appeals for the Second Supreme Judicial District which reformed and affirmed a judgment of the District Court of Tarrant County in favor of the appellees, J.C. Harrison and W.B. Harrison, against the appellant, Emmette A. Ellis, and rendered judgment against the appellants, Amanda M. Ellis and C.G. Ellis, the sureties upon the appeal bond of the appellant Emmette A. Ellis, and to enjoin the further execution of said judgment, and particularly the sale of certain real estate belonging to the appellants situated in Fort Bend County and advertised to be sold on the first Tuesday in January, 1900, by virtue of an execution issued out of the District Court of Tarrant County upon said judgment. Averments were also made as special reasons why the sale of the land in question should be enjoined.

Appellants first presented their petition to the judge of said court in chambers and obtained a temporary injunction which enjoined the sale as then advertised, but the injunction was afterwards dissolved in vacation, and when the term of the court came on the cause was heard and a general demurrer to the petition was sustained both for the want of jurisdiction and of equity in the bill, and the suit was dismissed. Appellants immediately perfected an appeal to this court by giving a cost bond. After the dissolution of the injunction the appellees sued out an alias writ of execution, and the land has again been advertised for sale thereunder on the first Tuesday in April proximo. Appellants have filed a transcript of the record and presented to this court an application for an injunction to restrain the sale of the land until the final disposition of their appeal. The District Court of Fort Bend County, for the *Page 15 term at which the judgment appealed from was rendered, is still in session.

Appellees have filed a plea in abatement to the jurisdiction of this court to entertain the said appeal, or to make any order in said cause until the District Court of Fort Bend County shall have finally adjourned for the term. During the term of the district court at which a judgment has been rendered the judgment remains in the breast of the court, and may be altered, revised, or revoked, although an appeal therefrom has been perfected. Blum v. Wettermark, 58 Tex. 125; Garza v. Baker,58 Tex. 483; Churchill v. Martin, 65 Tex. 367 [65 Tex. 367]; Grubbs v. Blum, 62 Tex. 426; Hooker v. Williamson, 60 Tex. 525; Blackburn v. Knight, 81 Tex. 331; Railway v. Railway,68 Tex. 103. But when an appeal from such judgment has been perfected during the term of the court at which it was rendered, the jurisdiction of the appellate court attaches, subject to the power of the district court to alter, revise, or revoke the same, and it may protect and enforce its appellate jurisdiction by the writ of injunction. Churchill v. Martin, supra. So, if it should be conceded that the appellate court has no power to hear and determine the appeal during the term of the court at which the judgment appealed from was rendered, yet the appellate court may protect or enforce its jurisdiction by injunction to prevent the execution of the judgment below. The plea to the jurisdiction is overruled.

The Constitution of this State, as amended in 1891, conferred upon the Supreme Court and the justices thereof the power to issue writs of habeas corpus as may be prescribed by law, and under such regulations as may be prescribed by law to issue such writs as may be necessary to enforce its jurisdiction. Const., art. 5, sec. 3. This jurisdiction had already existed before the adoption of the amendment. But the amendment went further, and provided that the Legislature might confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified except as against the Governor of the State. The power was conferred and has been frequently exercised. This amendment created the Courts of Civil Appeals, but did not provide in terms any jurisdiction as to the issuance of writs either in the exercise of original jurisdiction or in aid of its jurisdiction over causes before it on appeal. It contains, however, the provision that the Courts of Civil Appeals shall have such other jurisdiction original and appellate as may be prescribed by law. Amended Const., art. 5, sec. 6. In accordance with this provision of the Constitution the Legislature conferred power on said courts and the judges thereof to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts. Rev. Stats., art. 997. This was the power in such case conferred on the Supreme Court before the amendment. Rev. Stats. 1879, art. 1012. Thus it will be seen that the Courts of Civil Appeals and the judges thereof have power to issue the writ of injunction only whenever it may be necessary to enforce the jurisdiction of such courts, and that the decisions of the Supreme Court *Page 16 construing the law enacted with respect to its jurisdiction in such case in the same language are applicable to the exercise of such jurisdiction by the Courts of Civil Appeals.

In City of Laredo v. Martin, 52 Tex. 548, the city brought suit to enjoin Martin and others from maintaining a ferry between the city of Laredo, Texas, and the town of New Laredo, Mexico. The injunction was refused on the day the petition was filed, and the appellant excepted, the record not showing that it was during a term of the court that the petition was filed and the exceptions taken. Afterwards, upon a trial of the case, a judgment was rendered against the plaintiff that the corporation take nothing by the suit, and the case was appealed to the Supreme Court. The appellant made an application in the Supreme Court for a temporary writ of injunction to be issued by that court to restrain the defendant as prayed for in the sworn petition, until the final determination of the appeal, referring to the pleadings and the evidence in the record in support of the application. The Supreme Court denied the application because a writ of injunction was not necessary to enforce the jurisdiction of the court, and if it could be so held, no regulations for issuing it had been prescribed by law. The court said: "Its jurisdiction being appellate only, the court is not invested by the Constitution and laws with such general powers as would enable it to protect the parties from damage during the pendency of the appeal. The issuing of an injunction for such a purpose would be the exercise of original and not of appellate jurisdiction in the case. It would be doing that which, it is contended, the district court should have done before the trial." No distinction in principle can be made between City of Laredo v. Martin and the case now before the court. See also Grigsby v. Bowles, 79 Tex. 138. If this court should grant the writ of injunction prayed for, it would be exercising an original jurisdiction not conferred upon it by law.

We express no opinion about the merits of the appeal. If this court was of the opinion that the writ was invoked in an instance in which it had the power to grant it, the court would not stop to look into the merits of the case before granting the writ, but would only inquire as to the necessity of it to enforce the appellate jurisdiction of the court.

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ON APPLICATION FOR AN INJUNCTION. The appellants filed suit in the District Court of Fort Bend County to vacate and set aside a judgment of the Court of Civil Appeals for the Second Supreme Judicial District which reformed and affirmed a judgment of the District Court of Tarrant County in favor of the appellees, J.C. Harrison and W.B. Harrison, against the appellant, Emmette A. Ellis, and rendered judgment against the appellants, Amanda M. Ellis and C.G. Ellis, the sureties upon the appeal bond of the appellant Emmette A. Ellis, and to enjoin the further execution of said judgment, and particularly the sale of certain real estate belonging to the appellants situated in Fort Bend County and advertised to be sold on the first Tuesday in January, 1900, by virtue of an execution issued out of the District Court of Tarrant County upon said judgment. Averments were also made as special reasons why the sale of the land in question should be enjoined.

Appellants first presented their petition to the judge of said court in chambers and obtained a temporary injunction which enjoined the sale as then advertised, but the injunction was afterwards dissolved in vacation, and when the term of the court came on the cause was heard and a general demurrer to the petition was sustained both for the want of jurisdiction and of equity in the bill, and the suit was dismissed. Appellants immediately perfected an appeal to this court by giving a cost bond. After the dissolution of the injunction the appellees sued out an alias writ of execution, and the land has again been advertised for sale thereunder on the first Tuesday in April proximo. Appellants have filed a transcript of the record and presented to this court an application for an injunction to restrain the sale of the land until the final disposition of their appeal. The District Court of Fort Bend County, for the *Page 15 term at which the judgment appealed from was rendered, is still in session.

Appellees have filed a plea in abatement to the jurisdiction of this court to entertain the said appeal, or to make any order in said cause until the District Court of Fort Bend County shall have finally adjourned for the term. During the term of the district court at which a judgment has been rendered the judgment remains in the breast of the court, and may be altered, revised, or revoked, although an appeal therefrom has been perfected. Blum v. Wettermark, 58 Tex. 125; Garza v. Baker,58 Tex. 483; Churchill v. Martin, 65 Tex. 367 [65 Tex. 367]; Grubbs v. Blum, 62 Tex. 426; Hooker v. Williamson, 60 Tex. 525; Blackburn v. Knight, 81 Tex. 331; Railway v. Railway,68 Tex. 103. But when an appeal from such judgment has been perfected during the term of the court at which it was rendered, the jurisdiction of the appellate court attaches, subject to the power of the district court to alter, revise, or revoke the same, and it may protect and enforce its appellate jurisdiction by the writ of injunction. Churchill v. Martin, supra. So, if it should be conceded that the appellate court has no power to hear and determine the appeal during the term of the court at which the judgment appealed from was rendered, yet the appellate court may protect or enforce its jurisdiction by injunction to prevent the execution of the judgment below. The plea to the jurisdiction is overruled.

The Constitution of this State, as amended in 1891, conferred upon the Supreme Court and the justices thereof the power to issue writs of habeas corpus as may be prescribed by law, and under such regulations as may be prescribed by law to issue such writs as may be necessary to enforce its jurisdiction. Const., art. 5, sec. 3. This jurisdiction had already existed before the adoption of the amendment. But the amendment went further, and provided that the Legislature might confer original jurisdiction on the Supreme Court to issue writs of quo warranto and mandamus in such cases as may be specified except as against the Governor of the State. The power was conferred and has been frequently exercised. This amendment created the Courts of Civil Appeals, but did not provide in terms any jurisdiction as to the issuance of writs either in the exercise of original jurisdiction or in aid of its jurisdiction over causes before it on appeal. It contains, however, the provision that the Courts of Civil Appeals shall have such other jurisdiction original and appellate as may be prescribed by law. Amended Const., art. 5, sec. 6. In accordance with this provision of the Constitution the Legislature conferred power on said courts and the judges thereof to issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts. Rev. Stats., art. 997. This was the power in such case conferred on the Supreme Court before the amendment. Rev. Stats. 1879, art. 1012. Thus it will be seen that the Courts of Civil Appeals and the judges thereof have power to issue the writ of injunction only whenever it may be necessary to enforce the jurisdiction of such courts, and that the decisions of the Supreme Court *Page 16 construing the law enacted with respect to its jurisdiction in such case in the same language are applicable to the exercise of such jurisdiction by the Courts of Civil Appeals.

In City of Laredo v. Martin, 52 Tex. 548, the city brought suit to enjoin Martin and others from maintaining a ferry between the city of Laredo, Texas, and the town of New Laredo, Mexico. The injunction was refused on the day the petition was filed, and the appellant excepted, the record not showing that it was during a term of the court that the petition was filed and the exceptions taken. Afterwards, upon a trial of the case, a judgment was rendered against the plaintiff that the corporation take nothing by the suit, and the case was appealed to the Supreme Court. The appellant made an application in the Supreme Court for a temporary writ of injunction to be issued by that court to restrain the defendant as prayed for in the sworn petition, until the final determination of the appeal, referring to the pleadings and the evidence in the record in support of the application. The Supreme Court denied the application because a writ of injunction was not necessary to enforce the jurisdiction of the court, and if it could be so held, no regulations for issuing it had been prescribed by law. The court said: "Its jurisdiction being appellate only, the court is not invested by the Constitution and laws with such general powers as would enable it to protect the parties from damage during the pendency of the appeal. The issuing of an injunction for such a purpose would be the exercise of original and not of appellate jurisdiction in the case. It would be doing that which, it is contended, the district court should have done before the trial." No distinction in principle can be made between City of Laredo v. Martin and the case now before the court. See also Grigsby v. Bowles, 79 Tex. 138. If this court should grant the writ of injunction prayed for, it would be exercising an original jurisdiction not conferred upon it by law.

We express no opinion about the merits of the appeal. If this court was of the opinion that the writ was invoked in an instance in which it had the power to grant it, the court would not stop to look into the merits of the case before granting the writ, but would only inquire as to the necessity of it to enforce the appellate jurisdiction of the court. The application will be refused.

Application denied.

ON THE MERITS.

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56 S.W. 592, 24 Tex. Civ. App. 13, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellis-v-harrison-texapp-1900.

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