Bird v. Alexander

• Decision Date: 03 July 1926
• Docket Number: (No. 9867.)
• Parties: BIRD et al. v. ALEXANDER et al.
• Court: Texas Court of Appeals

288 S.W. 606

BIRD et al. v. ALEXANDER et al.

(No. 9867.)

Court of Civil Appeals of Texas. Dallas.

July 3, 1926.

Rehearing Denied October 23, 1926.

Appeal from District Court, Dallas County; Royall R. Watkins, Judge.

Original proceeding for injunction by D D. Bird and others against F. H. Alexander and others. Writ denied.

Clark & Clark, Phillips, Townsend & Phillips, H. P. Edwards, and Tom Scurry, all of Dallas, for appellants.

Hurt & Jacks and W. P. Dumas, all of Dallas, for appellees.

JONES, C. J.

Appellants, in the above-styled cause, now pending on appeal in this court, have made application by duly verified petition for the issuance of an original writ of injunction, in order that the status quo of the parties to the litigation may be maintained until judgment is rendered on the appeal.

Appellants instituted an injunction suit in the district court of Dallas county to restrain appellees, who constitute the commissioners' court of Dallas county, from continuing a hearing before them by the interested parties, to determine whether there will be created a levee district, under the provisions of chapter 21 of the 1925 General Laws of the state of Texas. A petition by owners of land within the boundaries of said district, as same was therein described, purporting to represent over 50 per cent. of the acreage of the said land, had theretofore been duly filed, and due notice for such hearing issued thereon. Appellants, who are landowners within said district, had appeared at such hearing, and had contested the creation of said district. They had presented a protest to appellees, challenging the jurisdiction of the court to entertain such hearing, and to create such district, on the grounds: (1) That the petition on which appellees were acting had not been signed by the owners of more than 50 per cent. of the acreage within said purported district, as required by law; (2) that, at the time the said petition was presented and filed, and when the notices were issued, a large part of the acreage of the purported district was embraced in an existing levee district that had been duly created; (3) that the subsequent act of appellees in attempting to dissolve said former district was void, for the reason that the only authority given for the dissolution of a levee district is that contained in said chapter 21, and that said provision of said chapter is void, for the reason that the caption to such enactment did not mention therein the dissolution of a levee district; (4) that other provisions of said chapter 21 are unconstitutional and void on grounds specifically alleged, but it is not deemed necessary for the disposition of this appeal to set them out or to discuss them.

After these protests had been overruled, and appellees were proceeding with the hearing on the petition to create the said district, these appellants presented to the judge of said district court a verified petition for injunction, alleging very fully and specifically, as grounds for an injunction, the matters above set out, as well as other matters not necessary here to mention. The petition also alleged that, if appellees proceeded with said hearing, and created said district, its mere creation would work injury and damage to them, specifically setting out how such damage would result. Such petition also contained allegations of no adequate remedy at law, and that appellants would suffer an irreparable injury if said district was created. The petition did not allege that the commissioners' court would create the district, or even were threatening to create such district, but only alleged what would result to relators if the said district was created. The petition contained a prayer for a temporary injunction, and, on its presentation, the judge of said court issued a temporary restraining order forbidding the continuing of the hearing by appellees until the further order of said court. A day was named for hearing the application for temporary writ of injunction, and at said hearing appellees presented a plea in abatement. As one of the various grounds alleged in this plea was the ground that the suit was prematurely brought, in that appellees had not determined whether such district should be created or not, and at that time they did not know whether they would create such district or not. Upon this hearing the court sustained the plea in abatement, and dissolved the temporary restraining order theretofore issued. The court also refused the application of appellants duly made to continue the restraining order in force until the disposition of the case on an appeal that would be perfected immediately. This application was denied, and appellants duly perfected their appeal, and such cause is now pending in this court.

Article 1823, Revised Civil Statutes 1925, clothes the Courts of Civil Appeals and the judges thereof with power to issue writs of mandamus, and all other writs necessary to enforce the jurisdiction of said courts. Under this statute, whenever it is necessary to maintain the status quo of the parties,...