Gulf, C. & S. F. Ry. Co. v. Fort Worth & N. O. Ry. Co.

• Decision Date: 14 December 1886
• Citation: 2 S.W. 199
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> FORT WORTH & N. O. RY. CO. and others.
• Court: Texas Supreme Court

2 S.W. 199

GULF, C. & S. F. RY. CO.v.

FORT WORTH & N. O. RY. CO. and others.

Supreme Court of Texas.

December 14, 1886.

Appeal from district court, Tarrant county.

Rule to show cause why respondents should not be proceeded against for contempt. The facts are stated in the opinion.

Ballinger, Mott & Terry, for Gulf, C. & S. F. Ry. Co. Pendleton, Chapman & Powell, for Fort Worth & N. O. Ry. Co.

GAINES, J.

The Gulf, Colorado & Sante Fe Railway Company, who are complainants in this proceeding, brought suit in the district court of Tarrant county against the Fort Worth & New Orleans Railway Company, one of the respondents herein, to enjoin it from building its railroad across complainant's track, and along its right of way, in a certain manner specifically stated in the petition. A fiat for a preliminary injunction having been obtained, the petition was filed, and writ issued, on the thirteenth day of May, 1886. At the term of the court next ensuing a motion was made to dissolve the injunction upon the grounds (1) that the court had no jurisdiction; (2) that there was no equity in the petition; (3) that all the equities in the petition had been denied under oath; and (4) that the injunction was obtained by misrepresentation and suppression of material facts. Upon the hearing of the motion, the injunction was dissolved, and a judgment rendered, from which the following extract is taken: "It is considered and ordered by the court that the said injunction be, and the same is hereby, dissolved, to which plaintiff, the Gulf, Colorado & Sante Fe Railroad Company excepts, and thereupon plaintiff waived its right to continue the same for further hearing, and asked that judgment final be entered on said petition, which being refused, the plaintiff excepted; and then came the plaintiff, by attorney, and suggested that the bill, being for injunction only, and the same being dissolved, asked that the petition or bill be dismissed, which is hereby accordingly done." Then follows a judgment against plaintiff for costs. The complainant thereupon excepted, and gave notice of appeal in open court, and immediately filed his supersedeas bond for an appeal to this court.

This proceeding is a motion by complainant to punish the respondents herein for contempt of this court in having disobeyed the injunction granted in the court below. The respondents who have been cited have appeared by counsel and answered, admitting the acts complained of, but objecting to the granting of the motion on grounds which will hereinafter be set forth. When an appeal from a final judgment of the district court is duly perfected, jurisdiction over the case ceases in that court upon its adjournment for the term, and attaches in the supreme court. An injunction, existing in the lower court at the time of the appeal, may be said to become the injunction of the court to which the appeal is taken. These propositions have not been seriously contested upon the argument, and, though not expressly decided in our state, the principles upon which they rest seem well supported by authority here and elsewhere. Teas v. Robinson, 11 Tex. 777; McLaughlin v. Janney, 6 Grat. 609; New Brighton, etc., R. Co. v. Pittsburgh, etc., R. Co., 105 Pa. St. 13; Yeoman v. Lasley, 36 Ohio St. 416; Stockton v. Bishop, 2 How. 74; Slaughter-house Cases, 10 Wall. 292.

The motion here made has been resisted mainly upon three grounds: First, that the judgment of the district court of Tarrant county is not a judgment from which an appeal will lie; second, that the appeal does not keep in force or revive the injunction; and, third, that complainants, knowing that the work the Fort Worth & New Orleans Railway Company were restrained from doing had been prosecuted ever since the rendition of the judgment, had taken no steps to enforce the injunction, and by its delay are to be presumed to have acquiesced in its dissolution.

We will discuss these grounds of objection to the motion in the order in which they have been stated.

Our statutes broadly provide that "an appeal or writ of error may be taken to the supreme court from every final judgment of the district court in civil cases." Rev. St. art. 1380. The object of the suit in the court below was perpetually to restrain the defendant in that suit from constructing and operating its road, in the manner proposed by it, across plaintiff's track, and along its right of way. The judgment of the court dissolved the injunction, dismissed the suit, and ordered that plaintiff pay all the costs. That this is a final judgment there can be no doubt. Any judgment is final which disposes of the matters in controversy as to all parties to the suit. West v. Bagby, 12 Tex. 34; Martin v. Crow, 28 Tex. 613; Hagood v. Grimes, 24 Tex. 16; Simpson v. Bennett, 42 Tex. 241; Cannon v. Hemphill, 7 Tex. 184.

But it is contended on behalf of respondents that, the suit having been dismissed at the request of plaintiff, it has no right of appeal; and in support of this proposition we have been cited to cases of O'Dougherty v. Aldrich, 5 Denio, 385, and Van Wormer v. Mayor of Albany, 18 Wend. 169. The cases cited are not in point. There was no motion in either case to dismiss the...