Kimbrough v. State

• Decision Date: 29 March 1940
• Docket Number: No. 2048.,2048.
• Citation: 139 S.W.2d 165
• Parties: KIMBROUGH v. STATE
• Court: Texas Court of Appeals

139 S.W.2d 165

KIMBROUGH v. STATE

No. 2048.

Court of Civil Appeals of Texas. Eastland.

March 29, 1940.

Appeal from District Court, Eastland County; B. W. Patterson, Judge.

Suit by the State of Texas against G. O. Kimbrough to have defendant's dwelling house, certain out houses, and a garage adjudged to constitute a nuisance under Vernon's Ann.P.C. art. 666—29. A permanent injunction was granted, and both parties gave notice of appeal. The State moves to have G. O. Kimbrough adjudged to be in contempt of court for alleged violations of the injunction occurring since the perfecting of the appeal.

Motion denied.

M. E. Lawrence, of Eastland, for appellant.

Earl Conner, Jr., of Eastland, for appellee.

FUNDERBURK, Justice.

In the name of the State of Texas, the Texas Liquor Control Board, represented by the Attorney General and District Attorney, brought this suit on April 10, 1939, against G. O. Kimbrough seeking to have the defendant's dwelling house, certain out houses and a garage adjudged to constitute a nuisance under authority of Vernon's Ann.Penal Code, Art. 666—29. On the same day, in response to allegations and prayer of the petition, a temporary injunction was issued and served restraining the defendant from selling intoxicating liquors upon the premises, or doing any of the enumerated acts alleged to constitute the use of the premises a nuisance.

On August 14, 1939, the case came on for trial on the merits and all issues, including some involving a contempt proceeding, were submitted to a jury upon whose verdict rendered in response to special issues, the court gave judgment declaring the premises to be a nuisance and perpetually enjoining the defendant from selling, bartering, possessing for the purpose of sale, etc., intoxicating liquors, on and in connection with said premises. The court, finding the premises to constitute defendant's homestead, refused to include in the judgment an order to have the premises padlocked. Both parties duly excepted to the judgment and gave notice of appeal.

On August 29, 1939, in response to a motion therefor by the defendant, the court fixed the amount of a supersedeas bond at $500. On the same day the supersedeas bond was duly approved and filed, and in due time the transcript and statement of facts were filed in this court by the defendant. Although by the notice of appeal alone the State duly perfected its appeal, the case is styled in this court as above indicated, being styled and numbered according to the record filed by the defendant.

The appellee, which will be referred to as the State, has filed in this court a "Request for Permission to File Attached Motion for Contempt." The attached motion, referred to, seeks to have the appellant G. O. Kimbrough adjudged to be in contempt of this court for alleged violations of the injunction, occurring since the perfecting of the appeal.

The temporary injunction granted on April 10, 1939, contemporaneously with the filing of the suit, was, as to its nature and purpose, no different from the permanent injunction awarded by the final judgment on August 14, 1939. The only difference was that the one operated until the other should become operative by final judgment. The purpose of both alike was to prohibit a continuation of the alleged nuisance; such nuisance existing prima facie as shown by the verified pleadings, at the time the temporary injunction was ordered, and existing absolutely (subject to review upon appeal) as declared by the judgment, at the time the permanent injunction was ordered.

There is authority existing from an early day to the effect that when a court grants a temporary injunction and later upon the merits renders judgment having the effect of setting aside or dissolving such temporary injunction, and an appeal is prosecuted, with supersedeas, from such final judgment, the temporary injunction remains in effect. Williams v. Pouns, 48 Tex. 141; Gulf, C. & S. F. Ry. Co. v. Ft. Worth & N. O. Ry. Co., 68 Tex. 98, 2 S.W. 199; Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14; Ford v. State, Tex. Civ.App., 209 S.W. 490.

This rule was held inapplicable to cases wherein the preliminary injunction was a temporary restraining order as distinguished from a temporary injunction. Ft. Worth St. Ry. Co. v. Rosedale Street Ry. Co., 68 Tex. 169, 4 S.W. 534; Riggins v. Thompson, supra; Ex Parte Rains, 113 Tex. 428, 257 S.W. 217; Ex Parte Zuccaro, 106 Tex. 197, 163 S.W. 579, Ann. Cas.1917B, 121; Ex Parte Olson, 111 Tex. 601, 243 S.W. 773.

In two or three decisions said rule was held applicable to cases wherein the final judgment, instead of being one having the effect of dissolving the preliminary injunction, awarded a permanent injunction. Ford v. State, Tex.Civ.App., 209 S.W. 490; Ft. Worth Fair Ass'n v. Ft. Worth Driving Club, 56 Tex.Civ.App. 167, 121 S.W. 213. The authority of the last two decisions, we think, has been, at least greatly shaken by subsequent decisions. In Ross v. Shook, 97 S.W.2d 505, 506, Chief Justice Smith, for the San Antonio Court of Civil Appeals, said of Ford v. State, supra, that it is "contrary to the great weight of authority in this state, and has never been followed in any authoritative case that has come to our attention." Ft. Worth Driving Club v. Ft. Worth Fair Ass'n, supra, was in principle disapproved in Haley v. Walker, Tex.Civ.App., 141 S.W. 166. The decisions in both cases, we think, are not, in principle, reconcilable with the leading cases dealing with the subject of superseding judgments under statutory provisions, of which it is deemed sufficient to cite only the following: Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326; Houtchens v. Mercer, 119 Tex. 431, 29 S.W.2d 1031, 69 A.L.R. 1103; Shell Pet. Co. v. Grays, 122 Tex. 491, 62 S.W.2d 113.

In the present proceeding there is no contention that the defendant (appellant here) is in contempt because of a violation of the temporary injunction. We only discover from the record that there was a temporary injunction, there being no mention of it in the motion now directly under consideration nor the attached motion which is sought to be filed. The contempt sought to be shown consists of the violation of the permanent injunction, the final judgment awarding which was, as said before, duly superseded.

But, even if it were contended that this court should entertain the contempt proceeding upon the ground that, under the authorities above mentioned, the superseding of the final judgment leaves in effect the temporary injunction, we are, nevertheless, of the opinion that we are not authorized to do so. If it be considered that there may be circumstances under which the subject matter of a temporary injunction and a permanent injunction awarded by the final judgment in the same case may properly be the same, saving only in the time of operation, still we think in such case the temporary injunction must be considered to have been merged in the permanent injunction. Otherwise, the right given by R.S.1925, Arts. 2270 and 2275, to supersede a judgment from which an appeal is prosecuted may be completely defeated. When a court, by its judgment in a trial upon the merits, decrees the same injunction previously and provisionally existing as a temporary injunction, there remains no function of the temporary injunction not equally as well performed by the permanent injunction. "The law is well settled in this state that the purpose of the issuance of a temporary injunction is to maintain the status quo in regard to the matter in controversy, and not to determine the respective rights of the parties under the cause of action asserted or defenses urged." We quoted the above in Morgan v. Smart, Tex.Civ.App., 88 S.W.2d 769, 770, from the opinion in James v. E. Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, and there cited many subsequent decisions of courts of civil appeals following it, to which more could now be added. Another good statement of the nature and function of a temporary injunction is as follows: "An interlocutory or preliminary injunction is a provisional remedy granted before a hearing on the merits, and its sole object is to preserve the subject in controversy in its then existing condition and without determining any question of right, merely to prevent...