Holcombe v. Lorino, 1801-6782.

• Decision Date: 28 November 1934
• Docket Number: No. 1801-6782.,1801-6782.
• Citation: 76 S.W.2d 509
• Parties: HOLCOMBE et al. v. LORINO.
• Court: Texas Supreme Court

Page 509

76 S.W.2d 509

HOLCOMBE et al. v. LORINO.

No. 1801-6782.

Commission of Appeals of Texas, Section A.

November 28, 1934.

Error to Court of Civil Appeals of First Supreme Judicial District.

Suit by Bernard Lorino against Oscar F. Holcombe and others. Judgment for defendants was reversed and remanded, with directions by Court of Civil Appeals [71 S.W.(2d) 402], and defendants bring error.

Judgment of Court of Civil Appeals reversed, and judgment of trial court affirmed.

R. R. Lewis, City Atty., George D. Neal and W. M. Holland, Asst. City Attys., and W. E. Boyd, all of Houston, for plaintiffs in error.

Charles Murphy and Sewall Myer, both of Houston, for defendant in error.

SHARP, Judge.

On the 2d day of November, 1933, Bernard Lorino filed in the district court for the Eightieth judicial district of Harris county his original petition for a temporary injunction against the mayor and commissioners of the city of Houston from interfering with his possession of stall No. 14, or in any manner interfering with his trade, or from compelling him to move or moving his fixtures during the pendency of the suit or until the further orders of that court. The injunction was granted as prayed for. Lorino filed amended pleadings, alleging, in substance, as the basis of his cause of action, the following facts: That he had a rental agreement with the city whereby he might use and occupy stall No. 14 in the city market, owned and operated by the city of Houston, for so long as he paid rent thereon and complied with the rules and regulations promulgated by the city of Houston for the operation of its city market; that, prior to the time of his rental contract with the city, stall No. 14 was occupied by a tenant who had become in arrears with the rent on said stall to the extent of $375; that Lorino did rent stall No. 14 from the city of Houston, paid the $375 back rent due by the former tenant, agreed to install new fixtures, and to improve the premises, and the authorized agents and representatives of the city of Houston agreed that he could occupy the space for so long a period as he paid the rent therefor and conformed with the reasonable rules and regulations governing the city market; that he did install new fixtures for the purpose of conducting his business to the value of approximately $5,000; that he had built up a remunerative business by operating stall No. 14 as a fish market, and that by reason of the fact that he paid back rent amounting to $375 due by a former tenant, and that the fixtures that he had installed will be of no value to him if required to vacate stall No. 14 in the city market; that so long as he pays rent on stall No. 14, and complies with the rules and regulations by the city of Houston for conducting its city market, he is entitled to remain in said premises; that the city council had served notice on him to move from the premises, and he prayed that the city be restrained permanently from in any manner interfering with his possession of stall No. 14.

The trial court sustained a general demurrer to his original, as well as amended, pleadings, without hearing the case upon its merits, and refused the injunctive relief prayed for. Lorino appealed to the Court of Civil Appeals at Galveston, and that court reversed the judgment of the trial court, and remanded the cause for trial, with instructions. 71 S.W. (2d) 402. The Court of Civil Appeals, in its opinion, sets out in detail the allegations embraced in Lorino's pleadings, and we refer to the opinion for a further statement of the matters alleged in the pleadings.

The principal question to be decidede here is whether or not Lorino is entitled to injunctive relief to prevent the city of Houston from prosecuting a forcible entry and detainer suit to oust him from stall No. 14, which he claims to hold by reason of a...