Ft. Worth Driving Club v. Ft. Worth Fair Ass'n

• Decision Date: 22 May 1909
• Citation: 121 S.W. 213
• Court: Texas Court of Appeals
• Parties: FT. WORTH DRIVING CLUB v. FT. WORTH FAIR ASS'N et al.

121 S.W. 213

FT. WORTH DRIVING CLUB v. FT. WORTH FAIR ASS'N et al.

Court of Civil Appeals of Texas.

May 22, 1909.

Original proceedings by the Ft. Worth Driving Club against the Ft. Worth Fair Association and others to enforce by contempt process an injunctional order pending before the court on appeal. The Ft. Worth Fair Association adjudged guilty of contempt, and the other respondents discharged.

See, also, 121 S. W. 213.

Bujau & Spoonts and Smith, Turner, Bradley & Powell, for relator. Q. T. Moreland, for respondents.

CONNER, C. J.

This is an original proceeding before us, instituted on the part of the relator, the Ft. Worth Driving Club, incorporated, to enforce, by way of contempt process, an order, pending before us on appeal, of the Honorable J. W. Swayne, of the Seventeenth judicial district, enjoining the respondent the Ft. Worth Fair Association, also incorporated, and its officers, from the sale of intoxicating liquors on the premises described in the application and held by the fair association under lease from the driving club. The fair association and its president, T. W. Mullally, were duly cited to appear before us to show cause, if any they had, why they should not be fined as for contempt in disobeying said order as prayed for. At the time required, all parties appeared and submitted the questions involved for our determination.

The facts are practically undisputed. It appears that David Evans, the owner, in 1905 leased the premises under consideration, consisting of about 30 acres of land near the city of Ft. Worth, to the relator, the Ft. Worth Driving Club, for a driving park, fair grounds, race track, etc., for a period of 15 years, and that such leasehold interest is a valuable one. The lease contained an express stipulation to the effect that during its existence no intoxicating liquors of any kind should be sold on the leased premises by the lessee or other person, and that in event of the violation of this provision the lessor should have the right to re-enter and take possession to the exclusion of the lessee. Afterwards, with the consent of the lessor, the premises were sublet by relator to the respondent the Ft. Worth Fair Association for a period of five years, in consideration of the sum of $1,350. This lease by its terms has not yet expired, and the fair association is conducting upon the premises a race meeting, for which purpose for a stated period each year the lease was made. In April, 1909, the relator filed before a district judge a petition setting up the above facts, alleging that the restriction in its lease was being violated by the fair association, and prayer was made for an injunction to restrain the alleged sale of intoxicating liquors upon the leased premises. The judge set the cause down for a hearing, to which respondent was cited, and upon such hearing, after a consideration of the respondent's answer and the evidence submitted by the respective parties, the Honorable J. W. Swayne issued his order granting the injunction prayed for upon the relator's filing bond in the sum of $2,000, which was soon thereafter done. Very soon thereafter, and before the writ of injunction was actually served upon the respondent, it gave notice of appeal from said order, and filed an approved supersedeas bond in the sum of $1,000, as fixed by Judge Swayne. In the application before us it is alleged, and it seems substantially undisputed, that intoxicating liquors are being sold upon the premises in controversy.

Respondents deny that they have sold intoxicating liquors as charged, but answer that, if any such intoxicating liquors have been sold upon the ground, it has been by one W. M. Robinson, with whom respondent "had entered into a lease and agreement" "leasing him a certain portion of the said grounds described in plaintiff's original petition filed in the district court, and that according to the terms of said agreement and lease the said Robinson, who was not a party to the proceedings herein, had the right to sell intoxicating liquors thereon; and your respondents aver that said Robinson has in all things complied with his portion of said contract and lease, and contends for the right to sell intoxicants under his contract: that if, since the granting of this order (the order for injunction), intoxicants have been sold on said grounds, which is not admitted, that he, the said Robinson, has done so on his own responsibility under his lease and contract, and that your respondents have neither permitted the sale of such intoxicants further, nor have they sold intoxicants on said grounds." Further answer is to the effect that the special provision of the lease contract made between the owner and relator has been waived, which answer in this respect was also made before Judge Swayne. The answer further sets up in defense the fact that it had duly appealed from the order of injunction and filed supersedeas bond, and that respondent had been advised by its attorneys that such appeal and bond suspended the order of injunction which thereafter, until further disposition, offered no impediment to the alleged sale of intoxicating liquors.

No question is made of our right to proceed. That is, it is in effect admitted that the appeal, which is under the act approved April 16, 1907, authorizing appeals from orders either granting or dissolving temporary injunctions (see Gen. Laws 1907, p. 206, c. 107), confers upon this court jurisdiction to determine the matters involved in the present proceeding, and we need not therefore discuss nor cite authorities in support of our power. The principal contention before us in behalf of respondents is that the order for injunction was suspended by the appeal with supersedeas bond by force of the...