Opinion
Writ of error refused, Mar. 19, 1919.
November 2, 1918. Rehearing Denied December 21, 1918.
Appeal from District Court, Tarrant County; R. E. L. Roy, Judge.
Suit by James A. Baker, receiver of the International Great Northern Railway Company, against T. Pena and others for an injunction. From a decree for plaintiff, defendants appeal. Reversed, writ vacated, and application therefor dismissed.
Graves Houtchens, of Ft. Worth, for appellants.
John M. King, of Houston, and Thompson, Barwise Wharton, Alfred McKnight, and Charles I. Francis, all of Ft. Worth, for appellee.
Briefly, this proceeding was instituted by appellee by an application to the district court for an injunction to restrain the separate prosecution of four separate suits that had been filed in a justice court of Tarrant county, Tex. The suits in the justice court were by T. Pena for the sum of $3.05, and by T. Reyes for the sum of $4.30, and by P. Ybarra for the sum of $4.10. All the suits mentioned were for wages for labor separately done on the railroad of which appellee was receiver. In appellee's petition for an injunction, it was admitted that the receiver became severally indebted to the laboring plaintiffs named, but it is alleged that before payment the said plaintiffs had fully and legally assigned said wages to the firm of Graves Houtchens, lawyers; that said Graves Houtchens had wrongfully instituted the said several suits in the several names of the laborers mentioned for the purpose of embarrasing and vexing the receiver and of causing him useless and unnecessary costs, particularly in the way of attorney's fees allowed laborers under Revised Statutes, art. 2178, which is not available to assignees of wage claims; that payment of the several sums specified had been tendered to said firm of lawyers, who refused the tender.
It was also alleged that a motion had been made in the justice court to consolidate said causes, but that said motion had been over-ruled by the justice of the peace.
The prayer was that the several plaintiffs in the justice court and the justice of the peace and the said firm of lawyers be restrained from a further hearing of said causes so long "as they are prosecuted as separate and distinct causes."
We are of the opinion that the petition wholly fails to show any right to the writ of injunction issued by the district court. The petition for injunction, upon which the decree rests, does not show that the alleged assignees of the claims sued upon by the laborers were made parties in the justice court. It is not alleged that the receiver sought to do this, nor does the petition distinctly show the contents of the motion made in the justice court to consolidate the suits, so that we can determine whether the justice of the peace abused his discretion in refusing to consolidate the causes in his court. The question of whether cases of the kind shall be consolidated is, at best, one that lies within the discretion of the court, not to be controlled by a writ of injunction. See Revised Statutes, art. 2182; Bolden et al. v. Hughes, 48 Tex. Civ. App. 496, 107 S.W. 91; Vernor v. D. Sullivan Co., 126 S.W. 641; McFaddin v. State, 139 S.W. 991; St. L. S.W. Ry. Co. v. Woldert Grocery Co., 162 S.W. 1176: C., R. I. G. Ry. Co. et al. v. Liberal Elevator Co. et al., 182 S.W. 355; H. T. C. Ry. Co. v. Young et al., 137 S.W. 380; Pye et al. v. Wyatt, 151 S.W. 1086.
Indeed, it seems plain, as was in effect admitted in behalf of appellee upon submission of this case, that the suits as instituted in the justice court could not have been properly consolidated by the justice of the peace. There were separate plaintiffs, suing for separate demands, and each case dependent for determination upon issues entirely disconnected and distinct. Such cases are not within the statute above cited, relating to consolidation of causes, as will be seen by reference thereto.
We fail to see, in the absence of the alleged assignees, as parties, how the justice of the peace could do otherwise than to hear and determine the issues of the assignment, as and when the several cases were tried in his court. If in truth T. Pena or T. Reyes, or P. Gonzales, or P. Ybarra had lost all right of recovery by reason of an assignment, and it was so proven, the effect would be to defeat the claim of the plaintiff against whom such proof was made, and such defense was clearly available in the justice court. In no other way that we can see could the justice of the peace proceed in the absence of the appearance of the alleged assignees as parties, for it is clear that unless they were parties no judgment could be rendered by the justice of the peace that would bind them.
We conclude that the judgment of the district court should be reversed, the writ of injunction heretofore issued vacated, and the application therefor dismissed.