Carleton v. Dierks
| Decision Date | 24 July 1946 |
| Docket Number | No. 9579.,9579. |
| Citation | 195 S.W.2d 834 |
| Parties | CARLETON v. DIERKS et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Comal County; J. R. Fuchs, Judge.
Suit by William Dierks and others against G. Lee Carleton for a temporary injunction pendente lite and upon final hearing for a permanent injunction restraining defendant from keeping the gates of a roadway locked, and for damages. From an interlocutory order overruling a plea of privilege seeking to change venue to Bexar county, where defendant resided, and from interlocutory order granting a temporary injunction pendente lite, the defendant appeals.
Affirmed.
A. H. Lumpkin, of San Antonio, for appellant.
Mark V. Fuchs and Schleyer & Bartram, all of New Braunfels, for appellees.
Appeal from two interlocutory orders:
1. Overruling a plea of privilege seeking to change the venue to Bexar County, where defendant resided; and
2. Granting a temporary injunction pendente lite.
Upon the Plea of Privilege.
The original petition alleged: Plaintiffs owned a ranch in Kendall County which adjoined a ranch of defendant in Comal County, over which latter plaintiffs owned a roadway leading to the New Braunfels-Boerne road, with gates where the road entered and left defendant's land. "Said defendant in Comal County, Texas, unlawfully locked said gates * * * and * * * in keeping said gates locked, which he had no legal right to do" deprived plaintiffs of the use of their said road, to their great and irreparable damage. The prayer was for a temporary injunction pendente lite and upon final hearing for a permanent injunction restraining defendant from keeping the gates locked, for damages, costs "and for such other and further relief in law and in equity to which they may be entitled."
In the same instrument, following and subject to the plea of privilege, defendant filed an answer consisting of exceptions, general denial and pleas to the merits, in which it was contended that plaintiffs had no legal rights in the roadway, but only permissive rights therein, allowed as a neighborly act on defendant's part, and subject to withdrawal at any time by him. Plaintiffs' affidavit controverting the plea asserted ownership in the road, its location in Comal County, the interference by defendant in its use by locking the gates; that defendant was questioning plaintiffs' title and claim to the roadway or easement; that the action involved plaintiffs' claim to title, use and enjoyment of real estate situated in Comal County; and that venue of the suit lay in that county by virtue of Sec. 14 of Art. 1995, Vernon's Ann.Civ.St. In a joint hearing on the plea and application for temporary injunction, defendant vigorously contested plaintiffs' right to the roadway easement, asserting that whatever rights plaintiffs had therein were only permissive. The same is true of appellant's brief.
It is manifest that the suit involves title to the easement, which constitutes an interest in land, and that the venue was properly laid in Comal County under Art. 1995, Sec. 14, Vernon's Ann.Civ.St. Posey v. Williamson, Tex.Civ.App., 134 S.W.2d 335, and cases there cited. The cases are not in point which hold that an injunction suit brought only to protect a right of way easement from infringement, where the right to the easement is conceded and not involved in the suit, does not fall within the purview of Art. 1995, Sec. 14.
Upon the Temporary Injunction.
Appellant's first point in this regard is that the injunctive order was void because there was no requirement therein for bond as provided in Rule 684, Texas Rules of Civil Procedure. The pertinent facts shown by the record are:
The suit was filed January 31 (all dates 1946). The same day temporary restraining order was granted upon filing $100 bond and hearing on application for temporary injunction set for February 12. Defendant's answer to application for temporary injunction and to suit on the merits, noted above, was filed February 6. Joint hearing upon the plea of privilege and application was had May 28, and on the same day and in the same order the plea was overruled and the temporary injunction granted, no mention being made of an injunction bond. Single appeal bond covering both orders was filed May 31 and the record and statement of facts were filed in this court on June 12. A supplemental transcript ordered prepared by the trial court shows the following proceedings subsequent to the order of May 28: Plaintiffs filed on June 18 application for nunc pro tunc order requiring plaintiffs to file an injunction bond in amount to be fixed by the court; the application alleging that the omission of such requirement from the original order was through inadvertence and mistake. This application was set for hearing June 22 and defendant notified thereof. June 20 defendant filed an answer to this motion containing a special exception to the effect that all jurisdiction over the matter was transferred to this court; and an answer to the merits of the application asserting that the order was void under Rule 684 TRCP for failure to require an injunction bond. June 22, upon hearing, an order was entered amending the previous order, by requiring an injunction bond in the sum of $500. This bond was filed on the same day.
The contentions of appellant on this issue are that the original order was void; that the trial court had no jurisdiction over the matter; and that this court should therefore dissolve the temporary injunction. It may be conceded that these contentions would be correct if the order had been granted ex parte. But here the order was granted after notice and upon full hearing in which both parties participated. In such case we think clearly that the order was voidable only and subject to amendment or correction. This view is supported by the following cases with the holdings in which we fully concur: El Campo Light, etc., v. Water, etc., Galveston, 63 Tex.Civ.App. 393, 132 S.W. 868; Oil Lease, etc., v. Beeler, Tex.Civ.App., Dallas, 217 S.W. 1054, error refused; Bettinger v. North Ft. W., etc., Tex.Civ.App., Ft. Worth, 278 S.W. 466. We adopt the discussion of this subject in Judge Buck's opinion in the last case (278 S.W. at page 471, col. 1).
Moreover, we think express authority for amending the order in the stated respect was authorized by the second proviso in Rule 434, Texas Rules of Civil Procedure. The wording of this proviso is identical with a portion of prior CCA Rule 62a; its incorporation in the new rules giving it the force of a statutory rule of procedure. The proviso reads:
"* * * if the erroneous action or failure or refusal of the trial judge to...
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