City of Paris v. Sturgeon

• Decision Date: 30 April 1908
• Citation: 110 S.W. 459
• Parties: CITY OF PARIS v. STURGEON.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Appeals

110 S.W. 459

CITY OF PARIS v. STURGEON.^*

Court of Civil Appeals of Texas.

April 30, 1908.

Rehearing Denied May 21, 1908.

Appeal from District Court, Lamar County; Ben H. Denton, Judge.

Action by B. B. Sturgeon against the city of Paris. From an order granting a preliminary injunction, defendant appeals. Reversed and remanded.

Edgar Wright, for appellant. Dudley & Dudley, for appellee.

WILLSON, C. J.

This is an appeal prosecuted as permitted by section 2 of the act approved April 16, 1907 (Gen. Laws 1907, p. 207, c. 107), against an order made by the district judge on an ex parte hearing in vacation granting a writ of injunction as prayed for by appellee. It was alleged in the petition for the writ that appellant was a municipal corporation operating under a special act of the Legislature approved in March, 1905; that it owned and operated for hire a system of waterworks by means of which it supplied its citizens and customers with water; that the petitioner owned a small tract of land situated partly within and partly without the corporate limits of the city of Paris, on which the petitioner with his family resided; that on the _____ day of October, 1904, the petitioner applied to and contracted with the city for water to be used on his said premises; that in compliance with his contract he paid to the city _____ dollars, and went to great cost and expense in connecting and completing a connection with the city's water system and extending same on to his property; that the meter used for measuring the water furnished to him by the city was placed on the part of his premises within the corporate limits; that the city at the time it received his money for making the connection with its water system knew his purpose was to obtain its water for use on his said property; that he had complied with all the city's rules and regulations and paid the city for its water as it had requested; that notwithstanding he had "a legal and binding contract" with it to furnish him water it was threatening and preparing to disconnect and take up and remove the connection of its water system with his property, and to wholly and permanently deprive him of the use of its water; and that if it was permitted to carry out its threat the value of his property would be greatly impaired, and he would be greatly inconvenienced and annoyed to his irreparable damage. The prayer was for a writ of injunction restraining the city and its agents from "molesting, disconnecting, or cutting off its water connection with and from" the petitioner's property, and "from interfering in any manner with said water connection, or molesting the plaintiff in the use and benefit of same in any way." The petition with the judge's fiat indorsed thereupon was filed with the clerk March 30, 1908. On the same day the writ was issued as prayed for, and service thereof had on officials of the city. April 2, 1908, the city filed its answer, and on the same day gave notice of an appeal to this court from the order granting the writ. The transcript was filed with the clerk of this court on April 4, 1908. April 7, 1908, appellee filed his motion to strike appellant's answer from the record on the ground that, having been filed with the clerk of the lower court after the order granting the writ had been made, it was not before nor considered by the judge at the time the writ was granted. Because of the provision in section 3 of said act approved April 16, 1907, that such a case should be heard in an appellate court "on the bill and answer, and such affidavits and evidence as may have been admitted by the judge granting or dissolving such injunction," by an order made April 9, 1908, we overruled the motion and refused to strike out appellant's answer. As the result of further consideration of the question urged by the motion we have concluded that we erred in overruling it. If the act referred to were capable of no other construction than one requiring an appellate court, in passing upon the appeal provided for, to consider as a part of the case pleading and evidence not before the judge at the time he made the order granting such a writ, to that extent we would doubt its validity. It perhaps is true that the Legislature has the power to confer other than appellate jurisdiction upon Courts of Civil Appeals. But if it has such power, a clear intent to exercise it should appear before such courts should assume other than the jurisdiction to review proceedings in trial courts given by the Constitution. The act in question, we think, does not evidence such an intent. If the language used should be construed as indicating such an intent, it would have to be construed as evidencing as strongly an intent to also confer upon the Supreme Court other than a revisory jurisdiction. The language is, "and the case may be heard in the said courts," that is, the Courts of Civil Appeals and the Supreme Court, "on the bill and answers and such affidavits and evidence as may have been admitted by the judge granting or dissolving such injunction." We think the act should be construed as authorizing this court and the Supreme Court to consider the answer and affidavits and evidence only when same constituted a part of the case before the judge at the time he made the order appealed from. Where the order is made after notice and on a hearing of both sides, the pleadings and evidence heard by the judge should be considered here. But where the hearing by the judge is ex parte, and the order is made on the allegations in the petition alone, as in this instance, we think this court in reviewing the action of the judge should consider the petition alone. To do otherwise would not be to review the action of the court on the case before him, but in effect would be to exercise here an original jurisdiction possessed by the district court alone, and try the case anew on other pleadings and evidence. This, we are sure, we should not do. Therefore, in disposing of this appeal, we will look to the petition alone in determining whether the action of the judge in granting the writ was erroneous or not.

Appellant insists that the petition was insufficient because it did not appear from its allegations that appellee's premises were situated within the city limits, nor that he was an inhabitant of the city, and because it did not appear from said allegations that the city was authorized to furnish to persons not inhabitants thereof water for use outside of its limits. "The rule of pleading," said the court in Harrison v. Crumb, 1 White & W. Civ. Cas. Ct. App. § 992, "that the statements of a party are to be taken most strongly against him, is re-enforced in injunction suits by the further requirement that the material and essential elements which entitle him to relief shall be sufficiently certain to negative every reasonable inference arising upon the facts so stated from which it might be deduced that he might not, under other supposable facts connected with the subject, thus be entitled to relief." And see Gillis v. Rosenheimer, 64 Tex. 246, where the rule as stated is approved; Cotulla v. Burswell, 22 Tex. Civ. App. 329, 54 S. W. 615; Martin v. Sykes, 25 Tex. Supp. 198; 10 Ency. Plead. & Prac. pp. 923-927. Measuring the allegations by this rule, we think it should be said that the petition shows (1) that the tract of land on which appellee resided was partly within and partly without the city limits, and (2) that by an arrangement had with the city in October, 1904, its water was piped to his premises, and a...