Marshall v. City of Dallas

• Decision Date: 23 June 1923
• Docket Number: (No. 9081.)
• Citation: 253 S.W. 887
• Parties: MARSHALL et al. v. CITY OF DALLAS et al.
• Court: Texas Court of Appeals

253 S.W. 887

MARSHALL et al. v. CITY OF DALLAS et al.

(No. 9081.)

Court of Civil Appeals of Texas. Dallas.

June 23, 1923.

Rehearing Denied June 30, 1923.

Appeal from District Court, Dallas County; Louis Wilson, Judge.

Suit by Allen F. Marshall and others against the City of Dallas and others. From a judgment dissolving a temporary injunction and dismissing the suit, plaintiffs appeal. Affirmed, and order of suspension pending appeal vacated.

Clark & Clark and Lafayette Fitzhugh, all of Dallas, for appellants.

Thomas, Frank, Milam & Touchstone, and Read, Lowrance & Bates, all of Dallas, for appellees.

JONES, C. J.

Appellants, who are composed of 29 resident citizens of the city of Dallas, instituted this suit against appellees, the city of Dallas and 10 citizens of the city of Dallas, seeking an injunction against the city of Dallas and certain of its officials restraining the issuing of building permits for the erection of buildings to be used as retail stores and oil and gas filling stations, in those districts in the city of Dallas that are residential districts and far removed from the business portion of the city of Dallas; also restraining the 10 citizens defendant from using the building permits which had theretofore been granted them, and from the erection, or attempted erection, of the buildings authorized by said permits. Appellants also prayed for the issuance of a temporary writ of injunction with the same restraining power pending the trial of the suit upon its merits. Appellants instituted the suit not only in behalf of themselves as individual property owners and taxpayers in the city of Dallas, but also in behalf of all other citizens of Dallas similarly situated as themselves in respect to the subject-matter of the suit. Upon presentation to the court in chambers of the petition properly verified, a temporary restraining writ was granted as prayed for, upon the condition that petitioners file a bond in the sum of $1,000. Such bond was approved and filed and the temporary writ of injunction issued. The clerk was directed to issue notice to appellees to be and appear before the court upon a fixed date "to show cause, if any, why said temporary restraining order should be dissolved."

Appellees, in response to said notice, made their appearance on the day named and each filed answer which challenged by demurrer the sufficiency of the petition as to its stating a cause of action, and, also, some of appellees also pleaded a misjoinder of causes and parties. The court sustained a general demurrer to appellants' petition and, on appellants declining to amend, entered an order dismissing the case from the docket. Judgment was accordingly entered dissolving the temporary injunction and dismissing the suit from the docket, to which order appellants duly reserved their exceptions and gave notice of appeal to this court. The judgment, however, contained the following order:

"It is further ordered, adjudged, and decreed by the court that upon the plaintiffs filing their appeal bond herein, for the sum of $5,000, within the time and payable and conditioned as required by law, that the above and foregoing order be and it is hereby suspended and shall not go into effect while this suit is pending in the appellate courts."

To this ruling appellees duly entered their exceptions. The appeal bond in the amount named and conditioned as required was filed by appellants, and the order dissolving the temporary writ of injunction and dismissing the suit was suspended. The appeal bond was filed May 22, 1923.

Just previous to the filing of the appeal bond, and on the same day, E. S. Burns filed a plea of intervention in the case objecting to the restraining order pending the appeal, authorized by the judgment of the court, in so far as it restrained the city of Dallas from issuing permits to parties not named as defendants and who would want to secure permits for the erection of houses remote from any property owned by appellants. Before the court acted on this plea of intervention, the appeal bond was filed, and the jurisdiction of the trial court to act on this plea was thereby defeated. Burns was one of the parties named in the petition as being one of the 26 persons to whom the city of Dallas intended to grant a permit for a business building in a residential section of the city.

As a general demurrer was sustained to the petition, all matters alleged therein as facts must be taken as true.

Briefly, appellants allege that they are resident property owners and taxpayers in the city of Dallas, and that each of them owns property within a radius of 800 feet of at least one of the lots to the owner of which the city of Dallas has granted, or is contemplating granting, a permit for the erection of a business building on his property, and that each contemplates the immediate erection of such business building; that the city of Dallas is about to grant 26 more such permits to certain enumerated parties not named as defendants for the erection of such buildings in strictly resident sections of the city; that the granting of these permits by the city of Dallas was wrongful, unlawful, and without any authority; that the property owned by appellants and affected by the granting of said permits is situated in those sections of the city long and exclusively devoted to residential purposes, and for which purposes it has become highly developed; that their said property is too far removed from the business centers of the city ever to become valuable as business property, and that the result to appellants of granting the permits and the erection of the business houses at the various places...