Cowan v. Nixon , 28 Tex. 230 ( 1866 )

Willie, J.

—The appellee, brought suit before James Taylor, a justice of the peace for the county of Bastrop, against the appellants, to recover of them damages to the amount of $100 for trespassing upon his land and cutting down and carrying away timber therefrom. Appellants, at the time of the institution of the suit, were residents of the county of Caldwell, but the land upon which the trespass was charged to have been committed was situated in Bastrop county. Appellants appeared before the justice and entered a plea in proper form to the jurisdiction of the court in which they ivere sued, alleging that they were not at the time of the- institution of the suit residents of the beat in which the justice presided, nor of the county of Bastrop, but were at that time residents of beat No. 1, in Caldwell county. This plea was overruled by the justice, upon exception thereto, and appellants plead over to the merits of the action. A jury was impanneled, a trial had, and a verdict and judgment rendered against appellants for the $100' damages. They applied to the judge of the second judicial district for a Avrit of certiorari to remove the proceedings to the District Court, which was granted. Upon the trial de novo in said court their plea to the jurisdiction of the justice was again overruled, and verdict and judgment for $100 damages rendered against him. ¡From this judgment they have appealed to this court, assigning several errors, only one of which, however, is insisted on in argument, and this is the only one which it will be necessary to notice. This assignment is, that the court erred in overruling the plea to the jurisdiction of the justice.

The question for us to consider and determine under this asignment is, can an action for damages to land be brought before a justice of the peace in the precinct where the land lies, when the defendant is a resident of another county?

The provision of the constitution of 1845, under which the legislature established justices’ courts, is found in the 17th section of the 4th article, and is in these words: “Justices of the peace shall have such civil and criminal jurisdiction as shall be provided by law.” Thus, the constitution itself does not undertake to provide what jurisdiction such courts shall have, but confers that power on the legislature. Hence, whatever jurisdiction these courts possess they derive 'exclusively from legislative grant, and hence, also, they must exercise it in the manner and within the limits prescribed by the power creating them. Courts established by written law cannot transcend the jurisdiction given by the law of their creation. (Baker v. Chisholm, 3 Tex., 158.)

In pursuance of the authority thus conferred upon them, the legislature, by the act of March 20, 1848, undertook to define the exact jurisdiction which justices’ courts. should possess, and the limits within which it should be exercised. By the 25th section of that act they make provision in plain and positive terms as to the subject-matter over which they should have and exercise jurisdiction, and by the 30th section of the same they establish the bounds within which it must be exercised. (O. & W. Dig., Arts. 1100, 1101; Paschal’s Dig., Arts. 1187, 1188, Notes 442, 443.)

This latter section provides as follows: “No person shall be sued before any.justice of the peace except in the precinct where such person resides, or in the precinct where the cause of action accrued, if in the same county: Provided, however, That if there be no justice of the peace in the precinct where the defendant resides, then such defendant may be sued in the nearest precient where there is a justice : Provided, also, That where a defendant has no fixed place of board or residence, he may be sued before any justice of the peace in the county: And provided, also, That where a defendant resides in an incorporated city or town, then he may be sued before any justice of the peace within the limits of the incorporation. In all cases the residence of a married man shall be deemed to be where his family resides, and that of a single man where he boards.” (Paschal’s Dig., Art. 1188.)

The general rule laid down in this section protects a person from suit in a precinct other than that in which he may reside. The cases in which suit may be brought in any other precinct are exceptions to this general rule; and in order to give a justice jurisdiction over a non-resident of his precinct, such person must come strictly within some of the exceptions mentioned in this section, or in other statutes passed by the legislature in reference to justices of the peace. The defendants in this case did not fall within the exceptions set forth in the above section; for, although the cause of action arose against them in the precinct of Justice Taylor, neither of them was a resident of the same county in which his precinct was situated, but both resided in the county of Caldwell.

There are other exceptions to the above general rule besides those laid down in the section which established it, which exceptions it is hardly necessary to enumerate, as the defendants do not fall within any of them. Thus, it is provided, that a defendant may be sued in a precinct and cotinty different from that in which he may_ reside, when he is liable to be jointly sued with some other person who is a resident of such precinct or county. (O. & W., Art. 1106, 1107.) If an action of forcible entry and detainer, any justice of the peace in the State has jurisdiction, &c. (Id., 933.) But there is no provision in any statute which expressly subjects a person residing in this State to an action for damages to land before a justice of the peace in a county different from that,of his residence. In fact, it is a general rule, applying as well to district as to justices’ courts, that an inhabitant of this State must be sued in the county of his residence. The exception by which it is attempted to subject him to suit in a different county must be clearly applicable. Our late Supreme Court held, in the case of Coffee v. Haynes, (24 Tex., 190,) that a suit to enforce a vendor’s lien must be instituted in the county of the defendant’s residence, though an action to enforce a a mortgage might be brought in the county where the mortgaged property was situated. Tins decision was based upon a strict construction of the tenth exception, as to venue, contained in the district court act of 1846.

But it is said in argúment, that the jurisdiction claimed in this instance is to be derived by implication from the eleventh exception, contained in Art. 401, O. & W. Dig. This article is the 1st section of the act of May 13, 1846, regulating proceedings in district courts. It provides that no person shall be sued out of the county where he has his domicil, except in certain named cases. The eleventh, exception is where the recovery of land, or of damages thereto, is the object of the suit; it must be instituted in the county where the land, or a portion thereof, is situated. It is attempted to extend this provision by intendment to suits for damages to land commenced in a justice’s court; and it is said that statutes treating of superior courts apply also to inferior tribunals, unless there be special exceptions, or the nature of the case renders them inapplicable.

We have already laid it down as a principle of law, that courts established by written law cannot transcend the jurisdiction given by the law of their creation. This principle is supported by numerous authorities, and was applied in limiting the jurisdiction and powers of justices of the peace in several cases decided by our late Supreme Court. (See Aulanier v. Governor, 1 Tex., 664; Foster v. McAdams, 9 Tex., 544.) If we are to look only to statutes creating justices’ courts and defining them powers, for their jurisdiction, they can take none by implication from that given to a superior tribunal. We know of no authority for the principle, that laws treating of superior courts apply also to inferior ones, at least as to jurisdiction, however true it may be as to matters of practice.

The legislature did not recognize any such doctrine, so far as rules of evidence and the practice in reference to executions is concerned, for they thought it necessary to specially provide, that the rules of evidence prescribed for the government of district courts, where the same did not conflict with the provisions of the justices’ court act, should govern in the proceedings of said, last mentioned courts, so far as the same were applicable, and also that the laivs regulating executions in the district courts should in the same manner apply to the courts of justices of the peace.

The action of trespass guare clausum fregit was local by the common law. (Chitty on Plead., 271.) The first clause of the 1st section of the district court act of 1846 would have repealed the common law in this respect, but for the subsequent saving contained in the eleventh exception. The justices’ court statute of 1848 does so repeal it. And if, by any possible construction, we could hold that the former act extended also to inferior tribunals at the time it took effect, the last-mentioned statute, passed two years subsequently, and confining the jurisdiction of justices in such cases to the county in which their precincts were situated, would operate as a repeal of that act, so far as these courts were concerned. It was doubtless the intention of the law that parties should not he forced to attend courts in counties distant from their homes, in order to defend suits for such small amounts as those falling within the jurisdiction of a justice of the peace.

We conclude, therefore, that the justice before whom this suit was brought had no jurisdiction of the case, hut that the defendants were entitled to be sued in the precinct of their residence in Caldwell • county. The judgment is therefore reversed, and the cause remanded, with directions to the court below to reverse the judgment rendered by the justice of the peace, and to cause the suit instituted before said justice to he dismissed.

Reversed and remanded.