Hice v. Cole

• Decision Date: 25 October 1956
• Docket Number: No. 6052,6052
• Parties: E. L. HICE, Appellant, v. Mike COLE, d/b/a Cole Butane Company, Appellee.
• Court: Texas Court of Appeals

Page 661

295 S.W.2d 661

E. L. HICE, Appellant, v. Mike COLE, d/b/a Cole Butane Company, Appellee.

No. 6052.

Court of Civil Appeals of Texas, Beaumont.

Oct. 25, 1956.

E. B. Votaw, Vidor, for appellant.

Hustmyre, Bruce & McKee, Orange, for appellee.

ANDERSON, Justice.

Under date of February 23, 1953, appellant, E. L. Hice, and his wife, Mable Hice, sold to appellee, Mike Cole, a butane gas business E. L. Hice had been operating in and from Vidor, Texas. As a part of the transaction, E. L. Hice agreed and covenanted that for a period of five years from the date aforesaid he would not 'enter into any phase of the liquified petroleum gas business either directly or indirectly, as owner or as an employee, either at wholesale or retail, either in the sale of fuel or of tanks, in any part of Orange County or in the trade territory heretofore served by him which might lie upon the borders of Orange County.'

On April 20, 1955, Mike Cole, representing that he was doing business in the name of Cole Butane Company, filed suit in the district court of Orange County to enjoin E. L. Hice from violating the aforesaid covenant. After pleading the contract, he charged in his petition that in violation of said covenant the defendant 'has secured employment and is at present working as a salesman for Butane Gas Appliance Company of Beaumont, Texas, a company generally engaged in the liquified petroleum gas business and its allied products, and defendant, in his capacity as salesman and employee for said Butane Gas Appliance Company, is engaged in the liquified petroleum business and is offering for sale and selling fuel and tanks in Orange County, Texas, and other parts of the trade territory formerly served by defendant.' He prayed that the defendant 'be temporarily enjoined from engaging in any phase of the liquified petroleum gas business as an employee of said Butane Gas Applicance Company or otherwise, directly or indirectly, either at wholesale or retail, and from selling fuel or tanks in any part of Orange County or in the trade territory lying upon the borders of Orange County and served by said defendant prior to the execution of said contract and agreement heretofore referred to, and that, on final hearing hereof, said injunction be made permanent for so long as said contract and agreement is in force and effect.'

On the same day the petition was filed, April 20, 1955, the judge of the district court of Orange County endorsed thereon his fiat, setting May 6, 1955, as the date for hearing the application for temporary injunction, and ordering that proper notice be issued to Hice. Notice was served on Hice April 25, 1955, and he appeared in person at the appointed time and place on May 6, 1955, but filed no answer.

No order of any kind appears to have been made in the case on May 6th or at any time prior to May 17, 1955. On the latter date, a signed docket entry was made by the judge as follows: 'Judgment for Plaintiff as per decree on file.' Judgment was then entered of record in the cause. The judgment opened with the recitation, 'This, the 17th day of May, 1955, came on to be heard the above entitled and numbered cause,' and closed with, 'Done and entered this, the 17th day of May, 1955.' It recited the appearance of the plaintiff and his attorney; service of process on the defendant and his failure to appear or answer, averring that the defendant 'wholly made default'; waiver of a jury and submission of all matters of fact and law to the court; the court's finding 'on grounds and sufficient evidence' that for a valuable consideration the defendant had covenanted that for five years from February 23, 1953, he would not 'enter into any phase of the liquified petroleum gas business * * * in any part of Orange County or in the trade territory heretofore served by him, the said defendant, which might lie upon the borders of Orange County'; the court's finding that 'in violation of said contract and agreement the defendant did secure employment and worked as a salesman for the Butane Gas Appliance Company, of Beaumont, Texas, a company generally engaged in the liquified petroleum gas business and its allied products and defendant, in this capacity as salesman and employee for said Butane Gas Appliance Company, engaged in the liquified petroleum business and that plaintiff has suffered, because of such violation by defendant of said contract and agreement, a reduction in the amount of volume of liquified petroleum gas and tanks sold by him,' etc; and then decreed as follows:

'It is, therefore, ordered, adjudged and decreed that the defendant, E. L. Hice, be and he is enjoined from and that he shall desist from, for a period of five years from the 23rd day of February, 1953, entering into any phase of the liquified petroleum gas business, either directly or indirectly, as an owner or as an employee, either at wholesale or retail, either in the sale of fuel or of tanks in any part of Orange County.'

The plaintiff caused a certified copy of the judgment to be served on the defendant on May 25, 1955. Then, on November 8, 1955, he filed in said cause his petition or complaint, verified by his attorney of record, seeking to have Hice adjudged in contempt of court for alleged violations of the judgment or writ of injunction. In this petition or complaint the plaintiff alleged the rendition of the judgment on May 17, 1955, set out the decree of the court, alleged the judgment to be in full force and effect, and charged the defendant with having violated the terms of the judgment or writ by working in the offices of the Decker Butane Company at Beaumont, Texas, by driving a Decker Butane Company truck in Beaumont, and by being in charge of a Decker Butane Company truck while it was being filled with butane gas at the Magnolia Refinery in Beaumont. Pursuant to the fiat of the judge of the trial court, endorsed on the aforesaid petition or complaint, a writ of scire facias was issued and served on the defendant, commanding the latter to appear on November 23,...