It will be noted that the petition of the plaintiffs set out in the opinion of the majority contains no allegation that the defendants have injured, or in any way threaten to injure, the property for the possession of which the plaintiffs sue; the injury complained of being a threatened loss of its rental value. The damages thus arising are fully protected by the terms of the bond given upon appeal to the county court, which the petition confesses was duly approved by the justice of the peace. See article 3957, Revised Statutes 1911. The insolvency of the sureties on this bond is averred only upon information and belief without supporting affidavits, notwithstanding which, upon the verified petition above, the order appealed from in this case was made mandatory in form. It commands the "defendants, their agents and employés, to immediately vacate lot 7 in block 1, in the town of Mingus, known as the cold storage and icehouse at Mingus, Tex., and to surrender possession of same to plaintiffs, and to not interfere with plaintiffs' possession of said property until further order of this court." Under these circumstances it may be gravely doubted whether the petition shows a right at all to a mandatory injunction; it being the rule that courts of equity are always reluctant to grant a mandatory injunction upon an interlocutory application and before final hearing save where the right is clearly established and the invasion of the right results in serious injury. See 1 High on Injunctions, § 2; and 22 Cyc. 742. But, without stopping to further consider the sufficiency of the petition in this respect, it seems clear to the writer that relief, if any, can only be extended by the county court where the petition shows the case is now duly pending upon appeal.
As the writer construes the petition, the issue of title is not presented save as incidental to the issue of appellees' right to the possession of the real property described in the petition. They allege that the defendants are wholly without title (mere trespassers); there is no prayer that the title be adjudicated; the petition is not indorsed "that the action is brought as well to try title as for damages," as required by Revised Statutes, art. 7734, relating to suits in trespass to try title, nor does the petition set forth any other fact, as the writer thinks, showing that the district court alone has jurisdiction of the matter in controversy. On the contrary, it affirmatively appears that upon the facts alleged the appellees themselves first invoked the jurisdiction of a justice court having full power in an action of forcible entry and detainer, so that as stated the issue of title is only incidentally involved; and in such cases the justice court in the first instance and the county court on appeal has undoubted power to determine a question of title in so far as it may be involved. Porter v. Porter, 2 Willson, Civ.Cas.Ct.App. § 433; Melvin v. Chancy, 8 Tex. Civ. App. 252,28 S.W. 241; Espey v. Boone, 33 Tex. Civ. App. 83, 75 S.W. 570; Springer v. Collins, 108 S.W. 758; Penney v. Woody, 147 S.W. 872; City of Victoria v. Schott, 9 Tex. Civ. App. 332,29 S.W. 681. I am not unmindful of the decisions cited by the majority (Thurber v. Connors and Others) holding that the district court is an appropriate tribunal for the trial of the mere right to the possession of land, but it must be conceded that its jurisdiction in this respect is merely concurrent with that of the justice court, or county court on appeal, to try simple possessory rights to land, and I know of no case, and none has been cited, where the power of the district court has been upheld as against that of another court of equal power over the subjectmatter where it appears, as here affirmatively shown on the face of appellee's petition, that such other court has first acquired jurisdiction and has not yet disposed of the case. The rule is that, of courts having concurrent jurisdiction over a controversy, the one first acquiring it is entitled to maintain it and to proceed to judgment and execution undisturbed by interference on the part of a court of co-ordinate power. Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1,16 S.W. 647, 26 Am. St. Rep. 776; Clepper v. State, 4 Tex. 245; Arthur v. Batte, 42 Tex. 160; Stone v. Byars, 32 Tex. Civ. App. 154, 73 S.W. 1086.
The case made by appellees' petition is in substance one in which they instituted a *Page 1180 suit in a justice court to recover possession of a certain lot forcibly entered upon by mere trespassers and prosecuted the suit to judgment in their favor, whereupon the defendants duly appealed to the county court as they had the right to do under the statute. Revised Statutes, art. 3956. There is no complaint that such appeal was not in due form or time, or that the county court did not thereby acquire jurisdiction, or that such court is without power to protect its jurisdiction and afford appellees all relief to which they may show themselves entitled. On the contrary, the gravamen of the entire complaint is that the sureties on the appeal bond, which had been duly approved, are insolvent and appellees hence left without remedy for loss of rents pending the appeal. As before stated, the petition affirmatively shows that such appeal was duly pending in the county court at the time the petition under consideration was presented to the district judge; and, if under the most favorable consideration appellees present a case for an injunction at all, the county court alone had jurisdiction to order its issuance. See Lazarus v. Swofford, 15 Tex. Civ. App. 367, 39 S.W. 389; Foust v. Warren. 72 S.W. 404; T. P. Ry. Co. v. Butler, 52 Tex. Civ. App. 323.114 S.W. 671.
I conclude that the order of the district judge appealed from should be set aside and the petition therefor dismissed.