James v. E. Weinstein & Sons

• Decision Date: 23 January 1929
• Docket Number: (No. 946-5061.)
• Parties: JAMES v. E. WEINSTEIN & SONS.
• Court: Texas Supreme Court

12 S.W.2d 959

JAMES v. E. WEINSTEIN & SONS.

(No. 946-5061.)

Commission of Appeals of Texas, Section B.

January 23, 1929.

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

Suit by E. Weinstein & Sons against Mrs. Sallie James and another. Judgment for plaintiff was affirmed by the Court of Civil Appeals , and defendant named brings error. Reversed and remanded for new trial.

Simpson & Collins and Leo Brewster, all of Fort Worth, for plaintiff in error.

McLean, Scott & Sayers, of Fort Worth, for defendant in error.

LEDDY, J.

Plaintiff in error, Mrs. Sallie James, was the owner of a two-story brick building situated at the corner of Houston and Weatherford streets in the city of Fort Worth. On the 21st day of April, 1925, she executed a lease on said premises to defendants in error for the term of three years with the option of renewing same on or before maturity for an additional two years, which option has been duly exercised.

On August 29, 1927, defendants in error filed suit in the district court of Tarrant county against the city of Fort Worth and Mrs. Sallie James, in which it was alleged that the city, acting through its building inspector, inspected said building and found it to be dangerous and unsafe for use by the public or for people to pass same, and the owner and lessee were duly notified of such fact, and directed to cause certain repairs to be made in order to make said building safe and secure. It was further: Alleged that the building was not in fact unsafe and that plaintiff in error, Mrs. James, had seized upon the opportunity of contending that the same was unsafe and that a new building should be erected, and was insisting upon her right to enter upon said premises and tear down the present building with the intention of erecting a new building thereon, and insisting that she has the right to rent the new building so constructed for a largely increased rental over what defendant in error was paying under the present lease of the premises. That the city of Fort Worth was threatening to rope off the premises and to prevent the public from entering the same unless the repairs required to be made by its building inspector were made.

In the alternative it was alleged that, if the building was in fact dangerous and unsafe for occupancy, it was capable of being repaired without material interference with the operation of defendants in error's business.

The prayer was for a temporary injunction restraining the city of Fort Worth from roping off the premises and from in any manner preventing the general public from having free right of ingress and egress to and from defendants in error's place of business, and restraining Mrs. Sallie James from in any manner tearing down the building aforesaid, or from in any manner harassing or interfering with them in their right to the quiet and peaceable use and occupancy of said premises, and that upon final hearing said injunction be made permanent.

It seems that the trial judge, upon presentation of this petition, required a hearing to be had before granting a writ of injunction and entered an order setting the same down for hearing on August 30, 1927, being the day after the petition was filed. It also appears that a trial was had on the 30th, the parties defendant having filed their respective answers without the necessity of the usual notice being served upon them. On this hearing, the trial judge did not confine his decree to determining the issue as to whether a temporary injunction should be issued, but decided the case on its merits, filing findings of fact and conclusions of law and effectually disposing of the entire controversy.

The trial court found that the building was unsafe and dangerous to the general public, but that it could be repaired by removing the second story and constructing a new roof, and recited in the findings that Mrs. James, the lessor, had been given the right to make these repairs, but in open court had declined to do so, and the judgment rendered provided that the lessee might make such repairs within the time stipulated in the decree, and the city of Fort Worth was enjoined from taking any action during the time allowed the lessee to make such repairs, and the lessor was also restrained from in any way interfering with the lessee in the making of such repairs.

Plaintiff in error insists that the hearing was one on the application for a temporary injunction, and not a final trial, and therefore the trial court was without authority to decide the case on its merits; that it had no right to effectually dispose of all the issues in the case on this character of hearing. While defendants in error contend that the hearing was not before the judge in chambers, but was a trial by the court on the issues presented; hence it was entirely proper to finally dispose of the questions involved.

The petition, as before stated, was filed on August 29, and the statement...