Allied Drug Products Co. v. Seale, 1336-5869.

• Decision Date: 16 May 1932
• Docket Number: No. 1336-5869.,1336-5869.
• Citation: 49 S.W.2d 704
• Parties: ALLIED DRUG PRODUCTS CO. v. SEALE et al.
• Court: Texas Supreme Court

49 S.W.2d 704

ALLIED DRUG PRODUCTS CO. v. SEALE et al.

No. 1336-5869.

Commission of Appeals of Texas, Section B.

May 16, 1932.

Error to Court of Civil Appeals of Tenth Supreme Judicial District.

Suit for injunction by J. Z. Seale against Rufus Pevehouse, Sheriff of Navarro County. To review a judgment of the Court of Civil Appeals [32 S.W.(2d) 390], dismissing an appeal from an order granting a temporary injunction, the Allied Drug Products Company brings error.

Judgment of Court of Civil Appeals affirmed.

Clif Huggins, of Sherman, and Ocie Speer, of Austin, for plaintiff in error.

Cleo G. Miller, of Corsicana, for defendants in error.

LEDDY, J.

The honorable Court of Civil Appeals dismissed this cause upon the ground that plaintiff in error had no right of appeal because it was not a party to the injunction suit in the district court from which such appeal was sought to be prosecuted. 32 S.W.(2d) 390.

Plaintiff in error had obtained a final judgment against defendant in error J. Z. Seale in the justice court of Grayson County. It procured the issuance of an execution on said judgment and placed the same in the hands of the sheriff of Navarro county for service. Thereupon defendant in error applied for and obtained a temporary injunction from the district court of Navarro county restraining the sheriff from levying said writ of execution. Plaintiff in error was not made a party to this injunction proceeding. After the issuance and service of the writ of injunction upon the sheriff, plaintiff in error filed its appeal bond in an attempt to perfect an appeal from the order granting the temporary writ of injunction to the Court of Civil Appeals.

Plaintiff in error contends that inasmuch as it was a necessary party to the injunction suit in the district court of Navarro county, it had the right to prosecute an appeal therefrom, notwithstanding it had not been served with citation, nor had it entered its appearance in the cause in which such injunction was issued.

We had occasion to consider this question in the case of Southern Surety Co. v. Arter (Tex. Com. App.) 44 S.W.(2d) 913, not yet reported [in State report]. After a thorough review of the authorities, the conclusion was there announced that where a statute gives the right of appeal to a "party" or a "party interested," only parties to the record, that is, those who have been served with citation, or have entered their appearance, are given the right of appeal from a judgment of the district court.

Plaintiff in error insists that its right to appeal, though not a party to the proceedings, is sustained by the decisions of the Supreme Court of this state in the cases of Moore v. Guest, 8 Tex. 117, and Ferris v. Streeper, 59 Tex. 312.

It must be conceded that the first case cited does sustain the plaintiff in error's contention, as in that case an appeal from a judgment of the district court annulling the probate of a will was considered, although the person appealing was not cited as a party, nor had he entered his appearance in the cause. The question of the right of appeal does not seem to have been raised or discussed by the court. However, in the later case of Ferris v. Streeper, above cited, the question of the right of one to appeal, who was not a party to the proceedings from which the appeal was sought to be taken, was squarely presented to the court, and it was distinctly held that only parties to the record can prosecute an appeal from the judgment of the district court.

It appears in that case that the plaintiff in error purchased certain property involved in the suit pending the litigation. After judgment was rendered in the trial court, he filed his motion for a new trial, setting up his interest in the property and alleging that he had been prevented from asserting his right pending the suit by reason of a fraudulent combination between the plaintiff and the defendant. The court, after hearing evidence adduced in support of the motion, overruled the same, and the appeal was prosecuted from that order.

In passing upon his right to appeal from the original judgment to which he was not a party, the court said: "As a general rule derivable from the various provisions of the statute regulating appeals, only parties to the record can exercise that right. The only exceptions to that general rule which now occur to us are those specially provided for in the following statutory provision: `In case of the death of any party entitled to an appeal or writ of error, the same may be taken by his executor, administrator or heir.' This would at least indicate the legislative intent in this particular...