Baumberger v. Allen

• Decision Date: 19 February 1908
• Citation: 107 S.W. 526
• Parties: BAUMBERGER et al. v. ALLEN et al.
• Court: Texas Supreme Court

107 S.W. 526

BAUMBERGER et al. v. ALLEN et al.

Supreme Court of Texas.

February 19, 1908.

Certified Question from Court of Civil Appeals of Fourth Supreme Judicial District.

Action by D. P. Allen and others against Charles Baumberger and others. From an order refusing to dissolve an injunction, defendants appeal to the Court of Civil Appeals, which certifies a question to the Supreme Court. Question answered.

Bertrand & Arnold, for appellants. Keller & Keller, for appellees.

BROWN, J.

Certified question from the Court of Civil Appeals for the Fourth district, as follows:

"In the above-entitled and numbered cause, pending on appeal in this the Court of Civil Appeals for the Fourth Supreme Judicial District of Texas on motion for rehearing, a question of law arises which this court deems advisable to submit to your honorable court for adjudication, and has accordingly directed me to certify to your honorable court the following question:

"Explanation: D. P. Allen filed petition in the district court on July 11, 1907, with the following fiat of the judge written thereon: `Upon the filing of this petition and plaintiff giving bond in the sum of two hundred and fifty dollars, conditioned as required by law, the clerk will issue a temporary writ of injunction as prayed for. J. L. Camp, Judge.' The writ was issued and served same day. On July 15, 1907, defendants Baumberger and De Leon filed their motion to dissolve said injunction. On July 31, 1907, plaintiffs and defendants amended. On same day the court heard the motion to dissolve upon testimony, and overruled the motion and adjudged as follows, as appears from the minutes: `And the temporary writ of injunction heretofore issued on the 11th day of July, 1907, commanding the defendants to desist and refrain from removing the said barn of the defendant Charles Baumberger to or near the southwest corner of lot 1 in block 43 on the corner of Evergreen and Nixon streets, in the city of San Antonio, Bexar county, Tex., belonging to said defendant Charles Baumberger, or to any other point on said lot where the same will interfere with the light and air of plaintiff's home, or become a nuisance to said plaintiffs, and the same remain in full force and effect until the further orders of this court.' From this order defendants gave notice of appeal and filed transcript in this court on August 7, 1907, which was within 15 days from the last-mentioned order, but more than 15 days from the fiat of the judge, indorsed on the original petition, but not otherwise, `entered of record.'

"Question: Has this court jurisdiction to consider the appeal?"

We reply that the Court of...