Texas & New Orleans Railroad Company v. C. T. Rucker, 99 Tex. 125

GAINES, Chief Justice. This is a certified question from the Court of Civil Appeals, First Supreme Judicial District.

The statement and question are as follows: “In the above styled cause now pending in this court on appeal from the County Court of Liberty County, the cause of action set up and the relief sought by appellant, plaintiff in the court below, is thus stated in its petition: cThat heretofore, to wit, on or about the 33d day of February, 1904, plaintiff had in its possession and control the following described personal property: eighteen head of oxen which had been shipped from New Braunfels, Texas, to Liberty, Texas, and consigned to said defendant.

That said oxen were shipped over the International & Great Northern Bailway, the Galveston, Harrisburg & San Antonio Bailway and the Texas & New Orleans Bailway, under and by virtue of a contract and agreement made and entered into by and between the defendant and the agent of the International & Great Northern Bailway Company, at New Braunfels, Texas; that by the terms of said contract and agreement, the defendant was to pay to plaintiff as freight charges for the transportation of said oxen, the sum of $49.50, which amount was the correct charge as prescribed by the tariff of the Eailway Commission of the State of Texas.

That said railroads above named are connecting lines and the sum so charged was to be paid to the Texas & New Orleans Eailway Company, at Liberty, Texas. That while on the way to Liberty, Texas, it ivas necessary to feed said oxen and they were fed" by plaintiff at San Antonio and Houston, for which an expense of $6.00 was incurred and became chargeable against defendant and due to the plaintiff. That on said 33d day of February, said oxen were in car No. 13798, G. H. & S. A. E. B., on the track of the plaintiff in the town of Liberty.

That the above named sums of $49.50 and $6.00, amounting to a "total of $55.50, was due and unpaid, and was the correct and lawful charge for freight and feed, but that defendant refused to pay same and any part thereof, and without consent of plaintiff and without having paid said sum or any part thereof, the defendant took possession of said oxen and removed them from said car, and now has them in his possession and control.

That said sum of $55.50 due to plaintiff as aforesaid has not been paid, nor has any part thereof, but though often requested, the defendant has refused to pay and did refuse to pay the same, or any part thereof, and this plaintiff is entitled to a lien on said property to secure the payment of said sum. “Wherefore, plaintiff prays for the possession of said oxen until the payment of said freight and feed charges due thereon to plaintiff, for the foreclosure of its lien, for costs of suit, and all relief, both general and special, legal and equitable, to which it may be entitled, as in duty bound it will ever pay.” “At the time the petition was filed, plaintiff applied for a writ of sequestration and the affidavit for said writ filed with the petition alleges the value of the steers to be $900.

To this petition the defendant presented the following demurrers: “ ‘1. Now comes the defendant, C. T. Rucker, and by way of resisting the jurisdiction of this honorable court demurs generally to plaintiff’s petition, and says the same shows that this court has no jurisdiction and of this he prays judgment of the court. “ c2.

Specially excepting to plaintiff’s petition on the ground of jurisdiction of this court, defendant says that the same is insufficient in that it shows that if plaintiff ever had any lien on the alleged eighteen head of oxen it was only a carrier’s lien at common law, and not a contract lien, or such a lien in law as'the value of the property covered by said lien would fix and govern the jurisdiction of this court, and that said petition shows that the amount in controversy is $55.50, and not the value of the property on which plaintiff asserts a lien, and of this he prays judgment of the court.’ “The demurrers were sustained by the court and plaintiff’s suit dismissed. “Upon the foregoing statement we respectfully certify for your decision the following question: “Did the trial court err in sustaining the demurrers to the petition ?” Accompanying the certificate and briefs sent up by the Court of Civil Appeals we find a copy of an opinion by Mr.

Justice Pleasants, from which we infer that the case was in the first instance decided by that court, and that the question was certified upon the filing of a motion for a rehearing. In that opinion the question is ably discussed and we concur in the reason and conclusion there announced. (Texas & N. O. Ry. Co. v. Rucker, 12 Texas Ct. Rep., 544.) We answer the question in the affirmative.