International Ladies' G. W. Union No. 123 v. Dorothy F. Co.

• Decision Date: 12 August 1936
• Docket Number: Motions No. 12657.,Motions No. 12659.,No. 10046.,Motions No. 12660.,Motions No. 12661.,Motions No. 12658.,10046.
• Citation: 97 S.W.2d 379
• Parties: INTERNATIONAL LADIES' GARMENT WORKERS' LOCAL UNION NO. 123 et al. v. DOROTHY FROCKS CO.
• Court: Texas Court of Appeals

Page 379

97 S.W.2d 379

INTERNATIONAL LADIES' GARMENT WORKERS' LOCAL UNION NO. 123 et al. v. DOROTHY FROCKS CO.

Motions No. 12657.

Motions No. 12658.

Motions No. 12659.

Motions No. 12660.

Motions No. 12661.

No. 10046.

Court of Civil Appeals of Texas. San Antonio.

August 12, 1936.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by the Dorothy Frocks Company against the International Ladies' Garment Workers' Local Union No. 123 and others. A temporary injunction was granted and the defendants appealed. Pending appeal, the defendants allegedly violated the injunction, and the plaintiff brought contempt proceedings in the Court of Civil Appeals. On motion to dismiss contempt proceedings.

Judgment in accordance with opinion.

See, also, 95 S.W.(2d) 1346.

Leonard Brown and Maxwell Burket, both of San Antonio, and Robert Lee Guthrie, of Dallas, for appellants.

Sylvan Lang and Morris Wise, both of San Antonio, for appellee.

MURRAY, Justice.

The above motions constitute contempt proceedings instituted in this court by appellee against Manuel Cardenas, Carlos Ibarra, Mrs. W. H. Ernst, Mrs. Merle Zappone, Manuel de Hoyos, Mayme Konzelman, Helen Rivas, Margarita Reygados, Helen Reygados, Frances Casares, Maria Flores, Connie Esquivel, Frances Cone, Grace Perez, and Carmen Estrado, charging each of the above-named persons with contempt of this court in that they have violated the terms of a certain temporary injunction pending in this court, on appeal from the Forty-Fifth district court.

The above-named respondents have filed a motion to dismiss these proceedings on the ground that the trial court and not this court has jurisdiction of this matter. The contention is made that this temporary injunction having been issued by Hon. S. G. Tayloe of the Forty-Fifth district court, and only having been brought before us by an appeal such as is provided for in article 4662, Rev.St., wherein it is provided, among other things, that: "Such appeal shall not have the effect to suspend the order appealed from unless it shall be so ordered by the court or judge who enters the order." That therefore the trial judge who issued the injunction is the proper agency to enforce such order and not this court.

In support of this contention we are cited to the case of Ex parte Klugsberg (Tex. Sup.) 87 S.W.(2d) 465, 468, wherein it was held that, where a receiver was appointed by a trial court and an appeal taken under the provision of article 2250, the trial court would nevertheless have jurisdiction to punish as for contempt one who refuses to obey the order of the court to turn certain property over to the receiver. We think this case in no way affects the numerous decisions in this state holding in effect that, pending an appeal from an order granting a temporary injunction, the appellate court and not the trial court has jurisdiction to punish as for contempt of court any disobedience of such injunction. One of the most recent decisions to this effect is the case of Ex parte Travis, 123 Tex. 480, 73 S.W. (2d) 487.

Justice Critz expressly distinguishes the Klugsberg Case from the Travis Case in the following language: "Relator cites the case of Ex parte Travis, 123 Tex. 480, 73 S.W.(2d) 487, by Judge Greenwood, as supporting his contention of a lack of jurisdiction in the district court to punish him for contempt in this case. We think the opinion in that case announces a correct rule of law, but it has no application here, if for no other reason, because of the express provisions of article 2250, supra."

We do not regard the contention here made as an open question. Justice Greenwood in Travis Case, speaking for the Supreme Court, had the following to say: "There must be an end to orderly administration of justice if at the same time two separate courts entertaining different views could exercise the power to adjudicate the same question. The Texarkana Court of Civil Appeals correctly announced more than a quarter of a century ago that: `After the appeal is thus perfected (i. e. by notice and cost bond), then the trial court loses its power in respect to those things which might trench on the appellate functions, and the jurisdiction of the Court of Civil Appeals attaches.' * * * Gordon v. Rhodes & Daniels, 104 S.W. 786, 787." See, also, Lytle v. Galveston H. & S. A. Ry. Company, 41 Tex.Civ.App. 112, 90 S.W. 316.

Since writing the above, the case of Ex parte Duncan (Tex.Sup.) 95 S.W.(2d) 675, 679, has been published and removes any doubt about the law in this state. Justice Sharp, speaking for the Supreme Court, there says: "When an appeal was taken from the order granting a temporary restraining order by the trial court to the Court of Civil Appeals, the order was not suspended, and the Court of Civil Appeals acquired jurisdiction of the matter. Where the Court of Civil Appeals acquires jurisdiction of a question, that court has the right and power to issue all writs necessary to enforce and protect its jurisdiction."

Respondents' motion to dismiss the contempt proceedings will be overruled, and this court will entertain jurisdiction of these proceedings.

When these matters were called for consideration on a prior date of the court, it was suggested by both parties that they would each desire to offer oral testimony.

The matter of taking this testimony was referred to Hon. S. G. Tayloe, judge of the Forty-Fifth district court, and we now have before us the stenographic transcript of all the oral testimony.

From this testimony it is apparent that the respondents have been guilty of violating the provisions of the injunction now pending in this court.

The evidence shows that Manuel Cardenas has violated the provisions of the injunction by the following acts: (1) By threatening to inflict upon H. B. Lieberman, an employee of Dorothy Frocks Company, bodily injury; (2) by breaking two of the glass windows of an automobile occupied by H. B. Lieberman and several other employees of Dorothy Frocks Company; said automobile being the property of said Dorothy Frocks Company; (3) by attacking Jason Doss, an employee of Dorothy Frocks Company, on Tuesday, June 9, 1936, and inflicting serious bodily injuries upon him; the said Cardenas being aided and abetted by Carlos Ibarra and two other men; (4) by assembling, congregating, and remaining near the place of business of Dorothy Frocks Company on June 8, 1936, and on June 10, 1936.

It is therefore the opinion of the court that Manuel Cardenas is guilty of contempt of this court, and should be punished by confinement in the county jail for a period of ten days, and a payment of a fine in the sum of $200, and cost of this proceeding.

The evidence further shows that Carlos Ibarra is guilty of violating the injunction by the following acts: (1) On June 8, 1936, and on June 10, 1936, by assembling, congregating, and remaining near the place of business of Dorothy Frocks Company; (2) on June 9, 1936, by attacking Jason Doss, an employee of Dorothy Frocks Company, and inflicting serious bodily injuries upon him; the said Ibarra being aided and abetted by Manuel Cardenas and two other men.

It is therefore the opinion of the court that Carlos Ibarra is guilty of contempt of this court and should be punished by confinement in the county jail for a period of five days, and the payment of a fine of $100, and cost of this proceeding.

The evidence shows that Mrs. W. H. Ernst is guilty of violating the injunction by the following acts: (1) On June 8, 1936, by inflicting upon Beatrice Rosales, an employee of Dorothy Frocks Company, serious bodily injuries by slashing and cutting her with a piece of glass; (2) on June 8, 1936, by threatening to cut the face of said Beatrice Rosales, if she did not quit working for Dorothy Frocks Company; (3) by assembling, congregating, and remaining near the place of business of Dorothy Frocks Company on June 8, 1936, and June 10, 1936; (4) on June 11, 1936, by committing an assault upon Theresa H. Rios, and inflicting serious bodily injuries upon her.

It is therefore the opinion of this court that Mrs. W. H. Ernst is guilty of contempt of this court, and should be punished by confinement in the county jail for a period of five days, and the payment of a fine of $100, and costs of this proceeding.

The evidence further shows that Mrs. Merle Zappone is guilty of violating the injunction by the following acts: (1) On June 11, 1936, by committing an assault upon Theresa H. Rios, an employee of Dorothy Frocks Company, and inflicting serious bodily injuries upon her; (2) by assembling, congregating, and remaining near the place of business of Dorothy Frocks Company on June 8, 9, 10, 11, 12, 13, and 15; (3) by picketing the place of business of Dorothy Frocks Company on June 8, 9, 10, 11, 12, 13, and 15, jointly with members of the said International Ladies' Garment Workers' Local Union No. 123, in numbers exceeding three, and with placards and banners, and without furnishing the names of such pickets or representatives to the Dorothy Frocks Company; (4) on June 8, 1936, by participating in assaults upon Ella Mynier, Reyes Campos, and Selma Schuneman, all employees of Dorothy Frocks Company; (5) on June 8, 1936, by cursing H. B. Lieberman, an employee of Dorothy Frocks Company, and threatening to "get him."

It is therefore the opinion of the court that Mrs. Merle Zappone is guilty of contempt of this court, and should be punished by confinement in the county jail for a period of eight days, and the payment of a fine in the sum of $250, and cost of this proceeding.

The evidence further shows that the respondents Manuel de Hoyos, Mayme D. Konzelman, Helen V. Rivas, Margarita Reygados, Helen Reygados, Frances Casares, Maria Flores, Connie Esquivel, Frances Cone, Grace Perez, and Carmen Estrado, and each of them, did on the dates here given violate the terms of said injunction in the following particulars:

(1) On June 8, 1936, by individually and...