Cohran v. Fischer

FUNDERBURK, Justice. This is an appeal from the judgment of the court below sustaining a general demurrer to the plaintiff’s petition, and, upon refusal of the latter to amend, dismissing the case. The suit was brought to enjoin' a judgment of the justice court of precinct No. 1, Throckmorton county, rendered in a suit for forcible entry and detainer. The judgment sought to be enjoined recited the appearance of the parties, the hearing of the pleadings, evidence, and argument, the verdict of a jury finding the defendant guilty of the charge as stated in the complaint, and adjudged to plaintiff a restitution of certain described premises. The ground alleged in plaintiff’s petition in this suit to show, that the judgment in justice court was void was that the bond filed by the plaintiff was invalid because it was not filed at the time of filing of the plaintiff’s complaint. Appellant by several propositions contends (1) that, to maintain in justice court a suit for forcible detainer, the relation of landlord and tenant must exist between the plaintiff and defendant, without which the court has no jurisdiction, and any judgment rendered would be void; (2) that the question of juris [578] diction is determinable alone from tbe pleadings, and, unless affirmatively so shown, the court has no jurisdiction; (3) that in forcible entry and detainer it must be shown that plaintiff has had prior possession of the premises and the defendant is holding over against the will of the plaintiff; or that defendant has entered the premises without the consent of plaintiff; (4) that in such a case, if plaintiff does not file a bond at the time of filing his petition, the officer has no authority to eject the defendant from the premises until after a judgment and writ of restitution is obtained. It is apparent that these propositions go beyond the facts stated in the petition as showing a want of jurisdiction. ' It seems to us too clear to require extended argument that none of these propositions raise a question of the total lack of jurisdiction in the justice court to render the judgment under attack. Under the Constitution (art. 5, § 19) and statutes (Rev. St. 1925, art. 23S5) of this state, justice courts are courts of general jurisdiction in actions of forcible entry and detainer. Clayton v. Hurt, 88 Tex. 595, 32 S. W. 876, Rankin v. Hooks (Tex. Civ. App.) 81 S. W. 1005. In the first case cited it was contended that the justice court was without jurisdiction in a forcible detainer proceeding until the term had terminated, and that, since it appeared from the face of the complaint that it was a lease from month to month, the notice given only two days prior to the ending of the month did not in law terminate the lease. The effect of the court’s holding was that' the improper determination of either or all of the material facts in controversy in an action of forcible entry and de-tainer, although error, does not render the judgment void. Fr,om the judgments rendered in such actions there exists a right of appeal to the county court. It is therefore apparent that the purpose sought to be accomplished by the 'injunction in this case is the same as would be accomplished by an appeal. “It is settled law that an injunction will not issue to serve the functions of iin appeal, writ of error, writ of certiorari or bill of review.” 24 Tex. Jur. p. 16; § 7. We are therefore of opinion that there was no error in the action of the trial court as complained of, and that the judgment should be affirmed, which is accordingly so ordered.