Ex Parte Rains

• Decision Date: 20 December 1923
• Docket Number: (No. 4011.)
• Parties: Ex parte RAINS.
• Court: Texas Supreme Court

257 S.W. 217

Ex parte RAINS.

(No. 4011.)

Supreme Court of Texas.

December 20, 1923.

Original habeas corpus proceeding by Dick Rains. Relator discharged.

Albert Strawn, of Dallas, for relator.

Lawther, Pope & Leachman, of Dallas, opposed.

CURETON, C. J.

By an amended petition filed in the district court of the Forty-Fourth district, in Dallas county, on March 13, 1923, W. H. Cox et al. sought to compel Dick Rains, the relator here, to continue to furnish water to the residents of a suburb of the city of Dallas, and to restrain him from cutting off the supply of water of the plaintiffs and others. The suit was based upon an alleged contract, the nature of which is immaterial in this proceeding. The prayer of the plaintiffs was as follows:

"Wherefore, premises considered, your petitioners pray your honor to issue this most gracious writ of mandatory injunction temporarily restraining the defendant from failing and refusing to furnish to each of your petitioners herein and the other residents of Vickery addition an adequate supply of water in compliance and in accordance with the terms and provisions of the first contract and agreement and deed above set out and further restraining said defendant from cutting off the supply of water from your petitioners and the other residents of Vickery addition so long as your petitioners and the remaining residents of Vickery addition comply with the terms of the contract first above set out, and pray for a temporary restraining order granting such relief and upon a final hearing hereof said temporary restraining order be made final and perpetual so that your petitioners and the other residents of Vickery addition can and will be supplied with water in compliance with the terms of the contract first above set out." (Italics ours.)

Upon the presentation of the amended petition containing the above prayer, Hon. Louis Wilson, judge of the court, indorsed thereon his fiat as follows:

                                      "March 13, 1923
                

"Mr. Clerk: Issue a writ of mandatory injunction temporarily restraining, until further ordered by this court, Dick Rains from failing and refusing to furnish to each of the petitioners and all the residents of Vickery an adequate supply of water in accordance with the terms and provisions of the contract and deed dated April 22, 1910, between W. E. Coleman et al. and J. E. Penry, and further restraining said defendant from cutting off the supply of water from petitioners and all the residents of Vickery, in all things as prayed for herein, upon the filing of a good and sufficient bond in the sum of $500.00, conditioned as required by law, and the defendant to appear herein at 2 o'clock p. m. on the 17th day of March, 1923, and show cause why this order should not be made permanent.

                               "[Signed] Louis Wilson, Judge."
                

(Italics ours.)

A writ of injunction issued on this order of the judge, which recited that the plaintiffs in the action "had prayed and obtained from Hon. Louis Wilson, judge of the Forty-Fourth judicial district, his most gracious temporary writ of injunction." (Italics ours.) The writ, after defining the restraint imposed by the substance of the flat, contains this language:

"And you are further commanded to appear before said court on the 17th day of March, 1923, at 2 o'clock p. m., to show cause why this order should not be made permanent until the further order of the district court, to be holden within and for the county of Dallas, Forty-Fourth judicial district of Texas, at the courthouse thereof, in the city of Dallas, on the 17th day of March A. D. 1923, when and where this writ is returnable." (Italics ours.)

Afterwards, on the 16th day of June, 1923, on a motion duly filed, the relator was adjudged guilty of contempt of court, which judgment, however, was not made effectual until June 23, 1923. Relator was fined $100 and ordered confined three days in jail for violation of the above-described injunction. The case is before this court on application for a writ of habeas corpus.

As shown above, by the fiat of the judge and the injunction issued thereon, the relator Dick Rains, was temporarily restrained from doing the acts complained of until further ordered by the court, and he was directed to appear at 2 o'clock p. m. on the 17th day of March, 1923, within four days after the court had indorsed his fiat on the petition, and show cause why the order temporarily restraining him should not be made permanent. The minutes of the court show no further orders relative to this restraining order or the matter set forth in this fiat or the injunction, until the final disposition of the case at a subsequent term of the court and the judgment of contempt.

The motion for contempt proceedings filed, and upon which relator was adjudged guilty, alleged the violations of the foregoing injunction to have taken place on June 13, 1923, and continuously after that date, or nearly three months after March 17, 1923, the date fixed by the court for the hearing, at which time it was to be determined whether or not the temporary restraint should be made permanent.

The relator contends that the judgment for contempt is void, because there was no injunction against him existing at the date of its alleged violation and after March 17, 1923, the day fixed for the hearing, as stated above; that the order of March 13, 1923, was a mere restraining order, which expired on the day set for the hearing.

The question for determination is whether or not the injunction evidenced by the fiat of the judge and issued was a mere restraining order or a temporary injunction to continue until the final disposition of the case. We agree with the relator that it was a mere restraining order, which expired on the date set for the hearing, to wit, March 17, 1923. As shown above, the prayer of the plaintiffs was for "a writ of mandatory injunction temporarily restraining," etc., and "for a temporary restraining order granting such relief, and upon a final hearing said temporary restraining order be made final and perpetual."

The fiat of the judge, as quoted above, was for the purpose of "temporarily restraining until further ordered by this court," and directed the defendant to...