Hartzog v. Seeger Coal Co.

• Decision Date: 31 January 1914
• Parties: HARTZOG et al. v. SEEGER COAL CO.
• Court: Texas Court of Appeals

163 S.W. 1055

HARTZOG et al. v. SEEGER COAL CO.

Court of Civil Appeals of Texas. Dallas.

January 31, 1914.

Rehearing Denied February 28, 1914.

Appeal from District Court, Dallas County; Kenneth Foree, Judge.

Suit by the Seeger Coal Company against C. B. Hartzog, J. B. Seeger, and another, for damages and to enjoin Hartzog and Seeger from prosecution of a pending forcible detainer suit. Injunction granted, and defendants Hartzog and Seeger appeal. Motion to dismiss appeal overruled, judgment reversed, and injunction dissolved.

Cecil L. Simpson, of Dallas, for appellants. Davidson & Davidson, of Dallas, for appellee.

TALBOT, J.

This suit was instituted in the district court of Dallas county, on September 24, 1913, by the Seeger Coal Company v. C. B. Hartzog, J. B. Seeger, and the Home Investment & Loan Company, to recover damages, and to enjoin J. B. Seeger and appellant C. B. Hartzog from prosecuting a certain forcible detainer suit pending in justice court, precinct No. 1, Dallas county, Tex., wherein C. B. Hartzog is plaintiff and the Seeger Coal Company and J. B. Seeger are defendants. The day the suit was filed, to wit, September 24, 1913, Hon. Kenneth Foree, judge of said district court, issued a temporary restraining order, restraining C. B. Hartzog and J. B. Seeger from prosecuting said suit in said justice court, and on October 3, 1913, in vacation, Judge Foree, after a hearing, entered an order adjudging and decreeing that said temporary restraining order be continued in force, and that said C. B. Hartzog and J. B. Seeger be enjoined from the further prosecution of said forcible detainer suit. The fiat of the judge indorsed on plaintiff's petition is as follows: "When the plaintiff shall have filed a properly conditioned bond in the sum of one thousand dollars the clerk will issue a temporary restraining order prohibiting the prosecution by defendants of said suit in said justice court as prayed; and will issue notice to defendants to appear at 9 a. m. Sept. 29, '13, to show cause why said restraining order should not be continued in force, and the other relief prayed for should not be granted. [Signed] Kenneth Foree, Judge 14th. Dist." The defendant, Hartzog, appellant herein, in due time answered by general and special exceptions to plaintiff's petition, and expressly admitting some, and denying other, matters set up in said petition, and closing with a prayer that the temporary order issued by the court herein on September 24, 1913, be dissolved, and that the court refuse to issue any further orders of judgments herein. The hearing provided for in Judge Foree's order indorsed on plaintiff's petition was continued from September 29, 1913, by consent of the parties, to the 3d day of October, 1913. On this date a hearing of the matters alleged by plaintiff for the issuance of the injunction prayed for by him was had and judgment rendered, which recites that "the demurrers and exceptions of the defendant Hartzog being duly considered, are overruled, and, the pleadings * * * being read and the evidence introduced and arguments heard, and all duly considered, it is the opinion of the court that the said temporary restraining order heretofore issued in this cause be continued and remain in force. It is therefore ordered, adjudged, and decreed by the court that the said temporary restraining order be continued and remain in force, and that the said defendants C. B. Hartzog and J. B. Seeger, and each of them, and the servants, agents, attorneys, and employés of each of them, be enjoined and restrained and prohibited, as they have heretofore been, from further prosecution of that certain suit No. 3813, and styled C. B. Hartzog v. J. B. Seeger et al., pending in the justice court of Dallas county, Tex., * * * and from taking and having entered therein any orders or judgment in the matter of the prosecution of said suit, until the further orders of this court." The said judgment concludes thus: "To which order and judgment made this, the said 3d day of October, A. D. 1913, the defendants C. B. Hartzog and J. B. Seeger except, and in open court gave notice of appeal to the Court of Civil Appeals of the State of Texas for the Fifth Supreme Judicial District, at Dallas, Tex."

The first question for decision arises on appellee's motion to dismiss the appeal. It is contended that it appears from the record sent to this court that the order or judgment appealed from is one refusing to dissolve a temporary injunction, from which no appeal under the laws of this state will lie; that the order granting the temporary injunction or restraining order herein was made and entered on the 24th day of September, 1913, and that the transcript was not filed in this court until the 14th day of October, 1913, more than 15 days after the making and entry of the order granting said injunction or restraining order; hence the transcript was not filed in this court within the time prescribed by law, and therefore, whether the appeal was taken from the order of September 24, 1913, granting said injunction, or the order of October 3, 1913, this court has not jurisdiction to consider the appeal. The statute does not give the right of appeal from an order refusing to dissolve an injunction. An appeal is allowed only from an order granting or dissolving a temporary injunction, and, in such case, the transcript of the record must be filed with the clerk of the appellate court not later than 15 days after the making and entry of such order. Article 4644, Revised Statutes 1911. If not so filed the appeal cannot be entertained. There is no question but that the appeal in this case is prosecuted from the order of the court made on the 3d day of October, 1913, and the question is whether the order made September 24, 1913, directing that a temporary restraining order be issued and notice be given to defendants, commanding them "to appear September 29, 1913, to show cause why such order should not be continued in force, and the other relief prayed for not be granted," was a mere restraining order, which was to have effect only until the 3d day of October, 1913, and the order made on that day, as distinguished from such an order, granting the temporary injunction sought, which was to continue in force during the pendency of the suit, unless sooner dissolved upon motion made for that purpose. If the effect of the first order was to direct the issuance of a temporary restraining order to continue in force only until the hearing to be had at a later date, and the order made October 3, 1913, must be construed to be the granting of the writ prayed for, then the appeal lies, and the motion to dismiss must be overruled.

It is well settled, and so pointed out in Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14, that under the practice of the American courts three species of injunction may be issued, namely: (1) A restraining order, which is defined to be "an interlocutory order made by a court of equity upon an application for an injunction, and as part of the motion for a preliminary injunction, by which the party is restrained pending the hearing of the motion"; (2) one which is intended to operate, and which does operate, unless dissolved by an interlocutory order, until the final hearing; and (3) a perpetual injunction which can be properly ordered only upon the final decree. It is sufficient to say, without quoting them, that under the articles of our statute relating to the issuance of injunctions, "the judge is authorized to place upon a preliminary injunction such limitations as to the time of its operation as he may see proper." Riggins v. Thompson, supra. It is obvious, we think, from the judge's order indorsed on the petition in this case September 24, 1913, the preceedings had, and the judgment rendered October 3, 1913, that the "restraining order" issued on said 24th day of September was intended to operate only pending the hearing to be had at a later date for the purpose of preserving the statu quo of the parties, and that the date of the granting of the temporary injunction prayed for was October 3, 1913. The language of the judge's fiat, to the effect that the defendant should be notified to appear and show cause why the "restraining order" should not be continued in force should not be construed as a notice to the defendants that the temporary injunction prayed for had been already granted, and that the hearing ordered was simply to give them an opportunity, at the date set, to file and present a motion to dissolve such injunction. Such a course is not provided for by statute, is foreign to any rule of practice or custom of our courts, and evidently the learned judge who made the order had no intention that it should serve that purpose. The clear inference is that the purpose of the order made September 24, 1913, was simply to restrain the prosecution of the suit pending in the justice court, until a hearing could be had to determine whether or not the plaintiffs were entitled to the temporary injunction prayed for during the pendency of plaintiff's suit. It will be noticed that the judge's order indorsed on the petition September 24, 1913, not only directed that notice be served on defendants to appear September 29, 1913, to show cause why the temporary restraining order should not be continued in force, but that they at said time show cause why "the other relief prayed for should not be granted." It is obvious from the language of said order here quoted that restraint of the defendants from the prosecution of the forcible detainer suit in the justice court was not all the injunctive relief asked for in plaintiff's petition, and is significative of the nature and purpose of the order. It indicates that the order, of which it is a part, was not intended to and did not reflect any definite conclusion or final action of the court with regard to the plaintiff's right to any of the relief sought, but rather that the determination...