Ford v. State

• Decision Date: 12 February 1919
• Docket Number: (No. 5128.)
• Citation: 209 S.W. 490
• Parties: FORD v. STATE.
• Court: Texas Court of Appeals

209 S.W. 490

FORD v. STATE.

(No. 5128.)

Court of Civil Appeals of Texas. Austin.

February 12, 1919.

Appeal from District Court, Travis County; Geo. Calhoun, Judge.

Suit for injunction by the State of Texas against John Ford. From decree for the State, defendant appeals, and the State moves for injunction against him. Motion granted, and defendant enjoined as prayed until further order.

E. B. Robertson, of Austin, for appellant.

C. M. Cureton, Atty. Gen., W. A. Keeling, First Asst. Atty. Gen., and Leigh Clark, Dist. Atty., of El Paso, for the State.

JENKINS, J.

On October 25, 1918, the state of Texas filed its petition in the Fifty-Third judicial district, praying for a temporary injunction against appellant, restraining him from selling intoxicating liquors at retail, and alleging that he was illegally pursuing the occupation of retail liquor dealer.

On the same day the court granted said injunction as prayed for.

On January 18, 1919, the case was tried on its merits, and the court entered judgment perpetually enjoining the defendant from selling intoxicating liquors in this state. From this judgment the appellant gave notice of appeal, and, the court having fixed his appeal bond at $5,000, he gave such bond, conditioned as required for a supersedeas bond, and the same was on January 31, 1919, approved by the clerk of said court.

The Attorney General has filed in this court a motion for injunction against appellant to prohibit him from pursuing the occupation of a retail liquor dealer, alleging upon information and belief that appellant is about to, and unless restrained by the order of this court will, engage in the occupation of a retail liquor dealer, which allegation is duly verified.

This petition has been submitted to this court upon oral argument by both parties, appellant's counsel admitting that it was the purpose of appellant to engage in the occupation of a retail liquor dealer pending the appeal, and perhaps he is now doing so.

It is the contention of appellant: (a) That this court is without jurisdiction to issue a writ of injunction herein, in that such writ would be an original writ, and not one issued in aid of our jurisdiction; (b) that, the appeal having been perfected by giving a supersedeas bond, the judgment enjoining appellant from pursuing such occupation is suspended until the case is decided by this court.

Courts of Civil Appeals in this state have no authority to issue original writs of injunction, but authority is conferred upon them by statute to issue such writs where the same may be necessary to enforce their jurisdiction. R. S. art. 1592.

Where it is necessary to issue a writ of injunction to maintain the status quo, or to preserve the corpus of the subject-matter of the litigation pending appeal, such writ is in aid of the jurisdiction of the appellate court in which the appeal is pending. Hubbart v. Bank, 55 Tex. Civ. App. 504, 119 S. W. 714; Ry. Co. v. Hornberger, 141 S. W. 312, 313; Ry. Co. v. Hornberger, 106 Tex. 106, 157 S. W. 744; Union Sawmill Co. v. Felsenthal, 84 Ark. 494, 106 S. W. 677; 2 R. C. L. § 97; 22 Cyc. 1010; Lumber Co. v. Corbell, 84 Ark. 596, 106 S. W. 677.

The subject-matter of this suit is to restrain appellant from an alleged violation of law, not from the date of final judgment herein only, but from the day the temporary injunction was granted. If the appellant is permitted to pursue the occupation of a liquor dealer until this case is finally determined upon its merits, which may be several years hence, and it should be then held that he had during each day of said time been violating the law, much of the subject-matter of this suit would have passed out of existence by the lapse of time. A temporary injunction having been granted prior to the rendition of judgment herein, and, the same not having been dissolved, the status quo at the time final judgment herein was rendered was that appellant stood enjoined from pursuing the occupation of a liquor dealer, and for this reason the state is entitled to an injunction herein, unless the temporary injunction had expired by its own terms, as was the case in Ft. Worth Ry. Co. v. Rosedale Ry. Co., 68 Tex. 163, 7 S. W. 381.

It is the settled law in this state that a judgment refusing a permanent injunction does not affect a temporary injunction in force at the time the judgment dissolving the injunction was rendered, hence an appeal from such final judgment leaves the temporary injunction in force. Williams v. Pouns, 48 Tex. 141; G., C. &. S. F. Ry. Co. v. Ft. W. & N. O. Ry. Co., 68 Tex. 105, 2 S. W. 199, 3 S. W. 564; Ft. W. Ry. Co. v. Rosedale Ry. Co., 68 Tex. 168, 7 S. W. 381.

Whether this be true for the reason that an appeal on a supersedeas bond suspends the judgment, as has sometimes been loosely said, or suspends only its execution, or because an appeal from a final judgment neither suspends the judgment granting the temporary injunction, nor its execution, there being no appeal therefrom, it is apparent that the rule applies equally to cases where the final judgment, as in this case, granted a permanent injunction. In the majority of cases hereinafter cited, the trial court granted a permanent injunction.

We might well rest our decision herein, except as to the federal question hereinafter discussed, upon the authority of these decisions, and hold that, even though the judgment permanently enjoining appellant from pursuing the occupation of a retail liquor dealer has been suspended by the appeal herein, the temporary injunction theretofore granted has not been suspended, and that the court in aid of its jurisdiction to enforce such temporary injunction and to preserve the status quo has the power to issue the injunction herein prayed for. But as the facts of the case present the issue as to whether an appeal upon a supersedeas bond from a purely prohibitive injunction, suspends such judgment, and as this question has never been decided by the Supreme Court of this state, we think its importance demands that we pass upon that issue.

We hold that an appeal from a judgment of any character, upon a supersedeas bond, does not suspend the judgment, but only stays its execution pending the appeal. 2 R. C. L. § 97, p. 122; Nill v. Comparet, 16 Ind. 107, 79 Am. Dec. 411; Mull v. McKnight, 67 Ind. 525; Randles v. Randles, 67 Ind. 434; Walls v. Palmer, 64 Ind. 493; Padgett v. State, 93 Ind. 397. The judgment itself remains in full force until it is reversed. If it be affirmed, the appellate court does not enter a new judgment in the case, nor revive the judgment of the trial court, but only removes the impediment to its execution. In this connection, we call attention to the fact that a supersedeas bond, as defined by our statute, does not purport to suspend the judgment from which the appeal is taken, but only to suspend "the execution of the judgment." R. S. arts. 2101 and 2103.

If it be true that the judgment of the trial court is not suspended pending the appeal, but that the only effect of such appeal is to stay its execution until the determination of the cause on appeal, it follows that a judgment which requires no process to enforce its execution is not affected by an appeal therefrom. A judgment that is purely prohibitive, and in no part mandatory, and which does not interfere with the possession of property, is such a judgment. The execution of judgments is enforced by the issuance of writs, such as execution, order of sale, etc. A purely prohibitory injunction is self-executing. It needs no writ for its enforcement, and there is no writ known to the law for its enforcement. Padgett v. State, supra. A court may punish a party for contempt if he disobeys such judgment, but this is not a writ to enforce the judgment; it is only a means to prevent its nonenforcement. As was said in Padgett v. State, supra, there is no provision for enforcing a purely prohibitory judgment by process, and none is needed, for the judgment enforces itself.

In support of the proposition that an appeal from a purely prohibitive injunction does not suspend such judgment, though a bond be given conforming in all respects to a supersedeas bond, we cite State ex rel. Gibson v. Superior Court, 39 Wash. 115, 80 Pac. 1108, 1 L. R. A. (N. S.) 554, 109 Am. St. Rep. 862, 4 Ann. Cas. 229; Union Sawmill Co. v. Felsenthal, 84 Ark. 494, 106 S. W. 676; Barnes v. Typ-Union, 232 Ill. 402, 83 N. E. 932, 14 L. R. A. (N. S.) 1155, 122 Am. St. Rep. 129; Powhatan Coal Co. v. Ritz, 60 W. Va. 395, 56 S. E. 257, 9 L. R. A. (N. S.) 1233; Sheridan v. Reese, 121 La. 226, 46 South. 218; Lindsay v. Dist. Co., 75 Iowa, 509, 39 N. W. 817; Smith v. Tel. Co., 83 Ky. 269; Central Union v. State, 110 Ind. 203, 10 N. E. 922, 12 N. E. 136; Hawkins et al. v. State, 126 Ind. 294, 26 N. E. 43; Heinlen v. Cross, 63 Cal. 44; Cole v. Edwards, 104 Iowa, 373, 73 N. W. 863; Wilkinson v. Dunkley, 141 Mich. 409, 104 N. W. 772; R. C. L. § 97; Elliott App. Pro. §§ 391 and 392; 2 Cyc. 913; 22 Cyc. 1010.

The statutes of the United States in reference to appeals are substantially the same as those of this state, except as to an additional feature in our statute, hereinafter referred to. U. S. Comp. St. § 1660, states what is necessary in a supersedeas bond. Section 1666 provides for a supersedeas "in any case" by serving a writ of error on the opposite party, and "giving the security required by law." "Any case" is equivalent to the expression "every final judgment" in our statute. R. S. art. 2078. Supersedeas of the judgment of the trial court is a matter of right. McCourt v. Singers-Bigger, 150 Fed. 102, 80 C. C. A. 56. But the decisions of the federal courts uniformly hold that an appeal upon a supersedeas bond from a merely prohibitory injunction does not suspend the judgment. Hovey v. McDonald, 109 U. S. 161, 3 Sup. Ct. 136, 27 L. Ed. 891; Leonard v. Ozark Land Co., 115 U. S. 468, 6 Sup. Ct. 127, 29 L. Ed. 445; Knox v. Harshman, 132 U. S. 14, 10 Sup....