Hudgens v. Yancey

• Decision Date: 27 March 1926
• Docket Number: (No. 11646.)
• Citation: 284 S.W. 347
• Parties: HUDGENS v. YANCEY.
• Court: Texas Court of Appeals

284 S.W. 347

HUDGENS v. YANCEY.

(No. 11646.)

Court of Civil Appeals of Texas. Fort Worth.

March 27, 1926.

Appeal from Wichita County Court; C. M. McFarland, Judge.

Suit by J. S. Yancey against L. E. Hudgens. From the judgment, defendant appeals. Reversed and remanded.

Kenley, Dawson & Holliday, of Wichita Falls, for appellant.

Harris & Martin, of Wichita Falls, for appellee.

BUCK, J.

J. S. Yancey filed an action against L. E. Hudgens, and alleged that prior to the 9th day of February, 1926, he owned in his own right a certain telephone and light wire line approximately 2,400 feet in length, and 12 poles 30 feet in length, and one pole 35 feet in length, running from the Wichita Falls and Iowa Park public road north to the residence of petitioner; that said poles and line were situated in Wichita county and the poles set in the ground, and the wires strung along said poles in good condition and repair; that without cause or right said Hudgens was proceeding to tear down said poles and wire line to plaintiff's damage in the sum of $250; and that, unless he was restrained from proceeding to tear down and remove said poles and line, said petitioner would be irreparably injured and damaged, in that the said poles and line were his private property, and were being used by him for telephone purposes. Plaintiff further alleged that he had no adequate remedy at law, and that, unless defendant should be restrained, petitioner would suffer irreparable injury and damage. He prayed for a writ of injunction, restraining defendant, his servants, agents, and employés from tearing down and removing said poles and wire lines, and from interfering therewith, and prayed for a mandatory injunction requiring the defendant to replace the poles and lines that he had already removed from their places, and for such other and further relief, special and general, in law and in equity, to which he might be justly entitled.

The petition was verified, and, on being presented to C. M. McFarland, judge of the county court of Wichita county, in chambers, on the 10th day of February, 1926, it was ordered that the writ of injunction in all things as prayed for be granted upon petitioner executing to the adverse party a good and sufficient bond in the sum of $500. Petitioner filed the bond on February 10, 1926.

On February 17th respondent, Hudgens, filed his answer and motion to dissolve the injunction theretofore granted; his answer consisting of a general demurrer, a number of special exceptions, a general denial, and certain special denials.

On February 19th relator, Yancey, filed his reply to the respondent's answer, and alleged that, at the time the injunction was served, respondent had already torn down and removed all the poles and wires mentioned in relator's petition, and that at the time he so removed them he had notice that the writ of injunction "was being issued, and would be served upon him restraining him from removing said poles and wires, and, when said defendant was so informed of said writ of injunction being issued, he rushed said work of removing same, and did remove same before said writ of injunction was served upon him, but he had full knowledge that said writ was being issued." He further alleged that defendant had failed and refused to obey said writ in any manner, and prayed that said motion to dissolve said writ of injunction be in all things refused.

The trial court overruled respondent's general demurrer and special exceptions, and overruled the motion to dissolve the injunction, and respondent appealed.

On February 18, 1926, the trial court heard the contempt proceedings against respondent, Hudgens, and adjudged him guilty of contempt of the mandatory injunction, in that he had failed and refused to replace said poles and wires as they were before he removed the same, and allowed said Hudgens ten days, or until the 1st day of March next, to replace all of said poles and wires in the same place and condition as they were before he removed the same, and to purge himself of contempt of the trial court for violation of said writ.

On February 26th respondent applied to this court for a temporary restraining order against said relator and Hon. C. M. McFarland, judge of the county court at law of Wichita county, and this court ordered that a temporary restraining order be issued upon said respondent filing a good and sufficient bond in the sum of $250, requiring said relator and said McFarland to refrain and desist from any further effort by the issuance of any writ or entry of any order or other action whatever to enforce the mandatory direction of the writ of injunction specified and described in said petition until, if at all, it shall be otherwise ordered by this court.

A motion to dissolve the restraining order by this court was then filed by relator, and submitted. It is agreed that, at the time the court passes upon the motion to dissolve, it may also pass upon the questions involved in the appeal, in order that the entire matter may be settled at one time. This will be done.

Opinion.

The evidence shows that the controversy between the relator and respondent arose out of the employment of respondent by relator to construct a telephone line from relator's house to the office of the receiver of the Southern Oil Corporation, from which relator could get direct connection with Wichita Falls. Relator agreed to pay the Southern Oil Corporation, or the receiver therefor, $3 per month for the use of the telephone. Relator claimed that respondent agreed to build the line for the sum of $200, and that, when the line was built and respondent came to relator's house to collect pay therefor, and to deliver the bill of sale, he charged him $290. Respondent claimed that the agreement was that he was to charge what it actually cost to erect and equip the line, and that it cost $290. He testified that he told the relator before the line was built that it would cost around $200, but that he never agreed to build it for any stated amount and for less than...