Bolton v. City of San Antonio

• Decision Date: 13 September 1893
• Citation: 23 S.W. 279
• Court: Texas Court of Appeals
• Parties: BOLTON v. CITY OF SAN ANTONIO et al.<SMALL><SUP>1</SUP></SMALL>

23 S.W. 279

BOLTON v. CITY OF SAN ANTONIO et al.¹

Court of Civil Appeals of Texas.

September 13, 1893.

Appeal from district court, Bexar county; G. H. Noonan, Judge.

Suit by John H. Bolton, a taxpayer, against the city of San Antonio and Bryan Callaghan, mayor, to enjoin an issue of city bonds. Dismissed. Complainant appeals. Dismissed.

T. J. McMinn and R. B. Minor, for appellant. Oscar Bergstrom and L. N. Walthall, for appellees.

NEILL, J.

The appellant, John H. Bolton, brought this suit in the district court of Bexar county on July 20, 1889, against the city of San Antonio and Bryan Callaghan, mayor of said city, appellees, to enjoin appellees from issuing coupon bonds of said city to the amount of $250,000, to run from 20 to 30 years, with interest at 5 per cent. per annum. The grounds alleged for the injunction were that the city of San Antonio, acting by its mayor and city council, was about to issue its said bonds to said amount without authority of law, (the facts intended to show that the issuance of the bonds contemplated would be illegal are fully alleged by appellant in his petition, but, in view of the disposition we shall make of the case, it is deemed unnecessary for us to reiterate them;) that appellant is the owner of property situated in said city, subject to taxation by the city; that if the bonds should be issued and sold to a bona fide purchaser, or pass by assignment into the hands of bona fide holders, his property situated in said city would be taxed for the purpose of paying the interest on said bonds, and providing a sinking fund to redeem them; and that he would have no defense against such holders, but would be compelled to pay such tax on his property to pay the interest on and redeem said bonds, and thereby sustain irreparable injury. A temporary writ of injunction was issued on the 20th day of July, 1889, which, on motion of appellees, was dissolved on the 6th day of August, 1889. Upon final hearing, a general demurrer was sustained to appellant's petition, and, he having declined to amend, judgment was entered, dismissing the case, from which he appealed to our supreme court. Upon the organization of our courts of civil appeals the case was transferred to the court of civil appeals for the third supreme judicial district, which court, on the 18th of January, 1893, affirmed the judgment of the court below, (21 S. W. Rep. 64,) but afterwards, upon motion of appellant, filed in said court on the 1st day of February, 1893, granted him a rehearing, (21 S. W. Rep. 401,) and transferred the case to this court. Appellant, in his motion for rehearing, referred to above, admits that, since the trial of the case in the court below, the bonds, the issuance whereof was sought to be enjoined, have been issued, and consequently that an injunction would be futile. He contends, however, that as the judgment against him is for costs, and is an adjudication that he wrongfully sued out the injunction, and is available as such an adjudication in any suit for damages which may be brought by the city against him, this court should either reverse the judgment of the lower court, or, if the facts alleged are deemed admitted by the pleadings, and if the fact of the issuance and sale of the bonds since the trial...