The opinion
On Motion for Rehearing.
It is insisted on motion for rehearing that our original opinion is in direct .conflict with a great many decisions of our Courts of Civil Appeals and of the Supreme Court. We have carefully read all of the opinions in the cases with which it is claimed we are in conflict, and are unable to agree that the conflict in fact exists. It is particularly urged that there is a conflict between our holding and that of the Supreme Court in the case of Haverbekken v. Hale, 109 Tex. 106 , 204 S. W. 1162 . We fail to understand the application of the holding in that case to the issue which we have decided in the instant case. That was a case in which an injunction was brought in the district court against the commissioners’ court. The right of the district court to supervise and control the commissioners’ court was placed in that opinion on section 8, art. 5, of the Constitution, and it was held that the supervisory control conferred by the Constitution upon the district court could be exercised through its equitable jurisdiction. It was accordingly announced that the attack by injunction in' the district court was a direct attack upon the proceedings of the commissioners’ court, which permitted a full inquiry into such proceedings, unhindered by any presumptions which would be indulged in a collateral attack upon a court of general jurisdiction. It was there stated that “not otherwise could the District Court supervise and control its action.” In the instant case the attack is purely collateral. The supervisory control of the district court does not extend to proceedings over which the county court is given jurisdiction by law.
It is also insisted that we are in conflict with the recent opinion by the Commission of Appeals in the case of Gulf Coast Irrigation Co. v. Gary, 14 S.W.(2d) 266 . We are unable to discover such conflict. It was stated in that opinion, as pointed out in the motion, in substance, that, where condemnation proceedings are void for want of power or jurisdiction of the county court to condemn the property, then an attempted entry under such void proceedings may be enjoined, but we do not interpret that opinion to hold at all that during the progress of condemnation proceedings in the county court the defendant in such proceeding can maintain an action for damages in the district court based upon an alleged insufficiency of description of the petition in condemnation. That opinion, in discussing the effect of article 3269, R. S., cites with approval some of the authorities cited in our original opinion. One authority there cited is the case of Texas & N. O. R. Co. v. City of Beaumont, 285 S. W. 944 (writ refused), in which the following holding is made: “We are also of the opinion that, if the petition for the appointment of commissioners was defective as claimed, it was open to appellant to present its objection thereto in the county court at law, if dissatisfied with the report and award of the commissioners, and under the authorities of this state, as we read them, that court is vested with the authority to hear and determine any objection that appellant might timely raise in connection with the condemnation proceeding, and that court is the only tribunal constituted by law with the authority to determine such questions in the first instance.”
There is a statément in the opinion in the case of Gulf, C. & S. F. R. Co. v. Ft. Worth & R. G. R. Co., 86 Tex. 537 , 26 S. W. 54 , which seems to support appellant’s contention. In that case one of the grounds relied upon to support the authority of the district court to enjoin the appellee from crossing appellant’s track by virtue of the condemnation proceedings was that the application for the appointment of commissioners did not contain the necessary allegations to confer jurisdiction to appoint them. Our Supreme Court, speaking through Justice Brown, said that, if that' allegation was well taken, the action of the county court was void, and the suit could be maintained in the district court. However, it was held in that case that the petition was sufficient to confer jurisdiction, and the question was not decided. Were that the only expression from our Supreme Court, we might feel impelled to follow it, although it was dictum, but later holdings by that *839 court, in which the question was considered and decided, as in the eases of Cleveland v. Ward and Neal v. Texas Employers’ Ins. Ass’n, 14 S.W.(2d) 793 , establish the rule followed in our original opinion, as we understand those holdings, and we are undertaking to follow them both because they are authority on the question and because we believe them to be wholly sound.
It is also insisted that, even if the proceedings in the county court were valid, appellant’s action set out in his petition for damages arising from the alleged illegal use of the writ of injunction by appellee could not be determined in the condemnation proceedings, and that we erred in abating that portion of his cause of action. His petition alleges such damages upon the ground that appellee knew at the time' it filed its petition for injunction that it had not complied with the law in endeavoring to condemn the right of way across appellant’s land. There is, as we construe the petition, no cause of action pleaded for damages for suing out an injunction separate and' apart from the fact that the condemnation proceedings were not in compliance with the law. (That is the question which we have held should be determined by the county court of Nolan county or by the appellate courts on an appeal from that court. %
We have given to this case more than customary time and thought. It involves, to our mind, an important question. We believe that our holding is essential to the proper and orderly administration of the laws, and that to hold otherwise would be to authorize unseemly and vexatious conflicts of jurisdiction. To abate the present suit pending an orderly determination of the one pending in the county court cannot work a great injustice to appellant, and to proceed with the trial thereof before the determination of the ease in the county court might result in a situation not unlike the unfortunate one disclosed by the facts in the case of Cleveland v. Ward.
The motion for rehearing will be overruled.