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

• Decision Date: 18 February 1887
• Citation: 3 S.W. 564
• Parties: GULF, C. & S. F. RY. CO. <I>v.</I> FORT WORTH & N. O. RY. CO.
• Court: Texas Supreme Court

3 S.W. 564

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

FORT WORTH & N. O. RY. CO.

Supreme Court of Texas.

February 18, 1887.

On motion for rehearing.

The appellant, the Gulf, Colorado & Santa Fe Railway Company, obtained a preliminary injunction, restraining the appellee, the Fort Worth & New

Orleans Railway Company, from laying its track across appellant's tracks and along appellant's right of way. The preliminary injunction being subsequently dissolved, appellant dismissed its bill, but gave notice of appeal, and immediately filed its supersedeas bond. This proceeding is a motion by appellant to punish appellee for contempt of court in having disobeyed the injunction granted in the court below. The appellees appeared, and admitted the acts complained of, but objected to the motion on the ground (1) that the judgment was not one from which an appeal would lie; (2) the appeal did not keep in force the injunction. For the original opinion of the court upon the motion, see 2 S. W. Rep. 199.

Pendleton, Chapman & Powell, for the motion. Ballinger, Mott & Terry, contra.

GAINES, J.

The motion for a rehearing in this case asks a reconsideration by the court of two questions passed upon adversely to respondents, in the opinion heretofore delivered at the Tyler term. We have endeavored to give to these questions the careful review which is demanded, as well by the able and exhaustive argument which has been filed in support of the motion, as by their intrinsic importance, and the large interests involved in their decision; but the demands upon the time of the court are such that we can only state briefly a few additional reasons for adhering to our previous decision.

In the first place, it is urged that the rule laid down in Williams v. Pouns, 48 Tex. 141, that an appeal from a final judgment dissolving an injunction suspends the dissolution pending the appeal, is against the better reason and the weight of authority, and should therefore be overruled. But this decision cannot be overruled without violating a leading principle applicable to the construction of legislative enactments. Since the statutes bearing upon the question were construed in that case, a revision of our entire statutory law, prepared by a commission of able and careful lawyers, has been adopted by the legislature. The Revised Statutes substantially re-enact the former laws upon this subject. If it had been the will of the legislature to abrogate the rule established in the case cited, it is to be presumed that, in revising the laws, they would have clearly expressed that intention in some special provision upon the subject. Having adopted in the new laws substantially the same provisions in regard to appeals that were found in the old, the inference is that they intended the same construction should be put upon them. Ennis v. Crump, 6 Tex. 34. This alone is sufficient to preclude us from disturbing the ruling of Williams v. Pouns, supra.

The other point to which our attention is called in the motion, is as to the right of appeal from the judgment in this case. We have been cited in the argument to a number of additional authorities upon the question, and shall briefly review them. As we construe the cases referred to, the only one which sustains the doctrine contended for, namely, that, if a plaintiff take a nonsuit or dismisses his cause, he cannot so appeal as to confer jurisdiction upon the higher court, is Ewing v. Glidwell, 3 How. (Miss.) 332. There the writ of error was dismissed, upon the ground that the plaintiff in error had taken a voluntary nonsuit. The court cited in support of their opinion the cases of Kempland v. Macauley, 4 Term R. 436, and Box v. Bennett, 1 H. Bl. 432. These causes are authority for holding that, when a party who has taken a nonsuit comes to be heard on a writ of error from the judgment, he cannot obtain any relief. They do not hold that the writ of error is unauthorized and void....