Owens v. Coker, 6651

• Decision Date: 16 May 1963
• Docket Number: No. 6651,6651
• Citation: 368 S.W.2d 777
• Parties: Joe John OWENS et ux., Relators, v. Hon. Ernest COKER, District Judge, et al., Respondents.
• Court: Texas Court of Appeals

Page 777

368 S.W.2d 777

Joe John OWENS et ux., Relators, v. Hon. Ernest COKER, District Judge, et al., Respondents.

No. 6651.

Court of Civil Appeals of Texas, Beaumont.

May 16, 1963.

J. Robert Liles, Houston, for relators.

W. C. McClain, Conroe, William Clarke, Houston, for respondents.

McNEILL, Justice.

This is an application by relators for writ of mandamus against the Hon. Ernest Coker, Judge of the Ninth District Court of Montgomery County, in which Texaco Inc., Frank Pitts, and Cleveland Realty & Investment Co. were also made respondents. The application was one to require Judge Coker to set the amount of supersedeas bond to supersede the judgment of said district court dated March 8, 1963. The case in which this judgment was rendered was one instituted by Texaco Inc., Frank Pitts, and Cleveland Realty & Investment Co. against relators, Joe John Owens and wife, seeking an injunction to restrain them, and all others acting in concert with them, from going on or remaining upon a certain acre of land alleged to be situated in the William Massey Survey in said county. The petition in that suit alleged that plaintiffs were the owners of and in the last peaceable possession of said premises, and the prayer was for notice to defendants for hearing on temporary injunction, and after such hearing, temporary injunction be issued to remain in force until final hearing when the injunction should be made permanent. Owens and wife answered and asserted that they were the owners of the premises and rightfully entitled to possession thereof. Upon a hearing the court made an order, hereinafter described, restraining relators and others acting in concert with them from entering upon or remaining in possession of the premises until they shall have shown themselves the rightful owners thereof. After this order was granted, relators gave notice of appeal and requested the trial court to set the amount of bond to supersede the order which the trial court declined to do, evidently on the basis that it was a temporary injunction. See Oak Downs v. Watkins, Judge, Tex.Civ.App., 85 S.W.2d 1100.

Although relators' petition for mandamus describes the injunction as a temporary one, upon oral argument in this matter they contended and have submitted supporting brief that the injunction was actually a permanent one. Respondents join issue on this by ably arguing the order entered was a temporary injunction.

The purpose of a temporary injunction ordinarily is to maintain the status quo until final hearing in the case. Lowe & Archer, Injunctions and Other Extraordinary Proceedings, Sec. 328, p. 340.

There are three kinds of injunctions. 'They are: (1) Temporary restraining orders; (2) temporary injunctions; and (3) permanent injunctions. The true character of each is determinable not by what it is denominated, but by its distinguishing characteristics and functions.' Mickle v. Garrett, Tex.Civ.App., 110 S.W.2d 1235 (1237).

What, then, is the nature of the injunction granted? Applying the test as stated in Mickle v. Garrett, supra, we must find the injunction's distinguishing characteristics and functions. The court's order of March 8, 1963, recites that 'came on to be heard the application for temporary injunction * * * and came (the parties) (who will be referred to in this description of the order as they were in the trial court) * * * and announced ready for hearing upon said application for temporary injunction * * * (and) having considered the verified (pleadings of the parties), the testimony of witnesses, * * *.' The order then makes the following findings: (1) On or about February 10, 1963, plaintiffs were in peaceable and exclusive possession of the one acre involved (which is surrounded by other lands in possession of plaintiffs all of which have been enclosed with a fence maintained by plaintiffs for many years). (2) On said date defendants cut in two places the fences and by force entered upon and seized the one acre, built a tin shack and with heavy equipment pushed up trees and graded a road 400 yards from the acre to the western side of plaintiffs' property; (3) Unless restrained, defendants will continue to build improvements and keep possession of and exclude plaintiffs from said land; (4) Plaintiffs were in peaceable and exclusive possession of said lands and enclosure 'such possession being the last peaceable, non-contented status of the parties which preceded the filing of this suit'; (5) Defendants are probably not asserting a bona fide claim of title to the land but are actually agents for one who has lost his right through a former suit, to raise the issue of title.

Upon these findings the order provides:

'It is, therefore, ORDERED, ADJUDGED and DECREED by the Court that Defendant, and each of them, their principals, agents, employees and others acting in concert with them, be, and they are hereby, temporarily restrained and enjoined from interfering with the peaceable and exclusive possession of the land...