City of Fort Worth v. First Baptist Church

• Decision Date: 25 October 1924
• Docket Number: (No. 1148.)
• Parties: CITY OF FORT WORTH v. FIRST BAPTIST CHURCH OF FORT WORTH.
• Court: Texas Court of Appeals

Page 1016

268 S.W. 1016

CITY OF FORT WORTH v. FIRST BAPTIST CHURCH OF FORT WORTH.

(No. 1148.)

Court of Civil Appeals of Texas. Fort Worth.

October 25, 1924.

Rehearing Denied December 6, 1924.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by the First Baptist Church of Fort Worth against the City of Fort Worth and another. From an order granting injunction defendant City appeals. Reversed, and writ canceled and set aside.

R. E. Rouer and Gillis Johnson, both of Fort Worth, for appellant.

B. F. Bouldin and Slay, Simon & Smith, all of Fort Worth (Phillips, Trammell & Chizum, of Fort Worth, counsel on appeal only), for appellee.

CONNER, C. J.

This is an appeal from an order of the Honorable H. S. Lattimore, Judge of Sixth District Court, granting to the appellee, the First Baptist Church of Fort Worth, a writ enjoining the city of Fort Worth and John Alderman, acting water commissioner of said city, from in any way cutting off or interfering with the free and continuous use of water from its sources of supply, alleged to have been heretofore furnished free of charge for use by the appellee church in operating or conducting a swimming pool.

It is alleged that the plaintiff church is a religious association, duly incorporated under the laws of Texas, and having its principal place of business located in the city of Fort Worth; that the church consisted of several thousand members residing in and adjacent to the city; that the city is a municipal corporation, of which John Alderman is the present acting water commissioner; that the First Baptist Church owns lots 2 and 3 in block 75 of the city of Fort Worth, on which is located what is known as the Sunday school building of the First Baptist Church, in the basement of which building is located what is known as the "swimming pools of the First Baptist Church, which said swimming pools had been constructed and used and occupied by said church for a number of years prior to this time."

Paragraph 3 of the petition reads as follows:

"Plaintiff would further show to the court that before said swimming pools were built, the then mayor of the city of Fort Worth agreed with the said First Baptist church, through its servants, agents, and members, that if said swimming pools were constructed and completed by the said church, and used free by the members of the said church and Sunday school and the citizens of Fort Worth, that the city of Fort Worth would furnish to it water, and would not require the church to pay for said water so furnished for said purposes."

It was further alleged that the said swimming pools have been used for the benefit of the said church, its members, and the members of said Sunday school, and for the benefit of the citizens of Fort Worth —

"for these several years, since the construction thereof, and that the said city in compliance with said agreement has furnished the water for said swimming pools, and has not heretofore required the church to pay for said water."

It was further alleged that said church is a religious institution, conducted for religious and charitable purposes, and for the well-being of the city of Fort Worth in a religious and moral way, and that said church has not charged for the use of said swimming pools anything except for a small incidental fee to pay for the towels and other necessary equipment going with said swimming pools, but that same has been used for the benefit of said church, its members, and for the benefit of the members of said Sunday school, and for the citizens of Fort Worth and surrounding community, and is not using the same, and has not used the same for profit, and that it is to the best interests of the city of Fort Worth and the citizens of said city that the said swimming pools be kept supplied with water, and that the same be allowed to said church members, said Sunday school, and citizens of the city of Fort Worth for bathing purposes in the future as in the past.

It was further alleged that said officer, John Alderman, has threatened and would in fact cut off the water from said pools, and not allow it to be used for the purposes stated, unless the members of said Baptist church pay for said water, and that, unless he is restrained, said church, Sunday school, and the members thereof, and the citizens of Fort Worth "will suffer irreparable loss and injury; and the same will work a great detriment and injury to said church and Sunday school, and to the citizenship of said city."

It was further alleged that the city has an abundant supply of water in Lake Worth, which flows to the city by force of gravity, and that the water supply of the city will not be endangered, nor the city hurt, by continuing to furnish said water to said bathing pools free of charge to the many thousands of people who are connected with the said church and the Sunday school.

The plaintiff church further alleged that for several years it had furnished to the city and citizenship thereof the use and benefit of its auditorium for numerous public gatherings and meetings of all kind; that said use of said auditorium had been a great help and of advantage to the city, and saved it many thousands of dollars —

"which said use was induced and caused largely by reason of the fact that the city of Fort Worth had agreed to furnish and was furnishing water for said swimming pools free of charge, and having accepted and received said profits the city of Fort Worth is now estopped from breaching its said contract, and should be required and compelled to continue to furnish said water under said contract and agreement."

The petition was duly verified, and its prayer for a writ of injunction granted without a hearing, and without notice to the city or any of its officers, and the city has appealed, as heretofore stated.

It will be necessary for us first to dispose of appellee's contention that this court is without jurisdiction because of the fact that appellant has not given an appeal bond, and for the further fact that the record fails to show that any notice of appeal was given in the court below. By an act of the Thirty-First Legislature of Texas, in 1909, the city of Fort Worth was granted a special charter (Sp. Laws 1909, c. 31), of which, by one of its provisions, the courts are required to take judicial notice. Section 3, c. 11, of that charter, provides that:

"No bond, undertaking or security shall ever be exacted or required of the city of Fort Worth in any suit or in the prosecution of any appeal, writ of error or certiorari in any of the courts of the state of Texas, whether such city be party plaintiff or party defendant, or whether the cause be at law or in equity. But all such actions, suits and proceedings to which said city is a party shall be conducted in the same manner as if the bond, undertaking or security otherwise required had been given."

Article 4644, Revised Civil Statutes of Texas, as amended in chapter 17 of the General Laws of the Thirty-Sixth Legislature (see Vernon's Ann. Civ. St. Supp. 1922, art. 4644), reads:

"Any party or parties to any civil suit wherein a temporary injunction may be granted or refused, or having been granted shall on motion be dissolved, or when motion to dissolve has been overruled under any of the provisions of this title, in term time or in vacation, may appeal from the order or judgment granting or refusing, or dissolving or refusing to dissolve such injunction, to the Court of Civil Appeals having jurisdiction of such appeal; but such appeal shall not have the effect to suspend the order appealed from, unless it shall be so ordered by the court or judge who enters the order; provided, the transcript in such case shall be filed with the clerk of the Court of Civil Appeals not later than twenty days after the entry of record of such order or judgment granting, refusing, dissolving or refusing to dissolve such injunction."

It will be thus seen that, by the express terms of the city charter, the appellant was not required, as a prerequisite to its right to appeal to this court from an order of the district judge granting the writ of injunction, to give a bond.

Nor do we think it necessary as a prerequisite to an exercise of appellant's right of appeal that notice thereof should have been given in the court below. General provisions regulating the right of appeal to this court from final judgments of the district and county courts require that notice of appeal shall be given. But this appeal is from an interlocutory order instead of a final judgment, and it was only by virtue of amendments to the general statutes that appeals from interlocutory judgments in certain cases, including appeals from orders granting temporary writs of injunction, were allowed.

In Edwards v. Morton, 92 Tex. 152, 46 S. W. 792, where a plaintiff, in whose favor a judgment was rendered with which he was dissatisfied, appealed from the justice court to the county court, our Supreme Court held that in such case no bond was required from the judgment in plaintiff's favor, nor was notice of appeal necessary on the ground that the statutes regulating appeals from justice court to the county court in such a case contained no such requirement.

A similar rule was made by our Supreme Court in the case of Beversdorff v. Dienger. 107 Tex. 88, 174 S. W. 576, in an appeal from the county court to the district court in a probate proceeding. In disposing of the contention that the district court was without jurisdiction because of a want of notice of appeal given in the county court, the case of Edwards v. Morton above cited, was referred to, and it was said:

"Edwards v. Morton stands in our decisions as an emphatic declaration that the statutory mode of appeal provided for a particular class of cases is alone to be consulted for the procedure necessary in the appeal of cases of that class, and where it is silent in respect to the giving of notice of appeal courts have no...