Perry v. Carlisle

• Decision Date: 23 November 1912
• Citation: 151 S.W. 1155
• Parties: PERRY v. CARLISLE et al.
• Court: Texas Court of Appeals

151 S.W. 1155

PERRY v. CARLISLE et al.

Court of Civil Appeals of Texas. Amarillo.

November 23, 1912.

Appeal from District Court, Dickens County; Jo A. P. Dickson, Judge.

Action by C. H. Perry against J. W. Carlisle and the Farmers' Union Cotton Yard. From an order dissolving a preliminary injunction, plaintiff appeals. Reversed and remanded.

See, also, 151 S. W. 1158.

Dalton & Russell, of Plainview, and R. S. Holman, of Spur, for appellant. B. D. Glasgow, of Spur, for appellees.

PRESLER, J.

This is a suit for injunction brought by appellant (plaintiff in the court below) on the 19th day of September, 1912, seeking to restrain appellees from weighing cotton, wool, sugar, or hides for the public, sold or offered for sale, and from weighing cotton, wool, sugar, or hides for other persons in the town of Spur, in precinct No. 3, Dickens county, Tex. Appellant in his original petition, among other things, alleged that on the 8th day of November, A. D. 1910, the day of the last general election for state, county, and precinct offices in Texas, he was duly elected public weigher for precinct No. 3, in Dickens county, Tex.; that the town of Spur is situated in said precinct; that he duly qualified and received his commission as such public weigher on or about the 21st day of November, A. D. 1910, and that he has continuously been and now is such public weigher, acting as such, and has been continuously and is well equipped and prepared to receive, store, and weigh all cotton and produce presented to him for weighing; that he had and has scales and a cotton yard conveniently located in the town of Spur, and was and is capable of weighing, and offering to weigh, all cotton and storing all cotton and other produce offered to him for storing and weighing at convenient places of easy access to the public, and that he charged and charges ten cents per bale for weighing and five cents per bale for marking cotton; that at the time he was elected and so qualified the appellees had opened up a yard in the town of Spur, Tex., and commenced to weigh cotton and all other produce offered to them, and solicited such weighing and weighed all cotton and produce they they could weigh for farmers, merchants, and other persons, and have continued and now are so doing and carrying on the business of weighing in the town of Spur, and holding themselves out to the public as such, and charging a compensation of ten cents per bale for weighing cotton; that appellees are not and never were public weighers or deputy public weighers for Spur, Tex., or Dickens county, or any part thereof; that appellees have weighed enough cotton to amount to about $400 in fees that appellant would have earned but for appellees, who have received, stored, and weighed cotton at their yard all along and are doing so now, and threatening to continue so to do indefinitely, and will so do unless restrained, to appellant's irreparable injury and damage, which injury is a continuous one, and that he has no adequate remedy at law; that there are about 5,000 bales of cotton alone weighed at Spur each cotton season from September 1st to April 1st, and to recover the legal penalties would require a multiplicity of suits, and, owing to the manner of handling the cotton, it is impossible to get the names of the owners weighing and sue them, and that the right of action against persons who employ appellees as weighers was and is inadequate; that appellees are depriving appellant of the fees of his office, and admit weighing cotton, and that they intend to continue to and are persisting in the same and charging for such weighing, and that, unless appellees are restrained, the damage to appellant will be irreparable, and that appellees are unable to respond in damages; that the cotton and produce weighed by appellees and threatened and solicited to be weighed was not that authorized by written instructions from owners shipping it to Spur, authorizing their commission merchant, factor, or agent to have said cotton and produce weighed by private weighers, and that appellees were not and are not intended to be the owners of the cotton and the produce that they have weighed and threatened and intend to weigh, said petition being duly verified by affidavit of appellant.

Upon ex parte hearing of said petition the court in vacation granted the injunction as prayed for, and, appellant having filed bond as required by the order of the court on the same date, a writ of injunction was issued and served on appellees, commanding them to "desist and refrain from weighing cotton, wool, sugar, or hides, sold or offered for sale in the town of Spur, Tex. and in precinct No. 3, Dickens county, Tex., for others than yourselves, until further order of said court"; the writ being made returnable to the ensuing term of the district court on the 25th day of November, 1912. From the order granting said writ of injunction appellees herein duly prosecuted their appeal to this court, which cause is here docketed as No. 357. Appellees at the same time, to wit, on the 23d day of September, 1912, filed their verified answer, and also a motion to dissolve the writ of injunction in the court below. Thereafter, to wit, on the 5th day of October, 1912, appellant by leave of the court filed his first amended original petition, pleading therein substantially as in his original petition, except that in his first amended original petition appellees are alleged to have "opened up a yard in the city of Spur, Tex., or just outside of the present incorporated limits, on south side of railroad track, but still in the town of Spur proper, the city being incorporated about April, 1911," stating, also, that he charges 10 cents per bale for weighing cotton. Appellant also on the same date (5th of October, 1912) filed his answer to appellees' answer and motion to dissolve, excepting to appellees' said answer, and specially answering that appellees are not, and never were, warehousemen, and did not act in that way, but as public weighers, as alleged, and that they did the weighing as alleged in appellant's petition, and that appellees are still going ahead weighing cotton, and that it would not injure them if the injunction granted was continued until final hearing, but that to dissolve the same would greatly damage appellant, and in support of said answer attached and made a part of the same the affidavit of T. J. Harkey, together with the exhibits thereto attached and made a part thereof. On the same day (5th of October, 1912) appellees filed their answer and counter affidavits of J. W. Carlisle and Will Taylor by way of replication to appellant's answer, controverting the facts alleged in appellant's said answer. Thereafter, on the 11th day of October, 1912, upon due notice of said hearing, the court proceeded to hear the motion of appellees to dissolve the temporary injunction theretofore granted on September 19, 1912, stating that he heard the same upon plaintiff's first amended original petition, the answer of appellees, and upon the pleadings and affidavits as hereinbefore stated, and that said affidavits were all the evidence introduced on the hearing, and proceeded to grant an order dissolving said injunction and carrying the main case over until the next regular term of the district court of Dickens county, Tex., for final hearing, at the request of appellant, and awarding the costs of said motion to dissolve in favor of appellees. From this order dissolving said temporary injunction appellant herein duly appeals in the present case. At a former day of this term motions...