Riggins v. Thompson

• Decision Date: 22 December 1902
• Citation: 71 S.W. 14
• Parties: RIGGINS v. THOMPSON et al.
• Court: Texas Supreme Court

71 S.W. 14

RIGGINS v. THOMPSON et al.

Supreme Court of Texas.

December 22, 1902.

Suit for injunction by J. W. Riggins against W. H. Thompson and others. On motion for rule for contempt for disobedience of a restraining order. Motion overruled.

W. S. Baker, Scarborough & Kimbell, and W. L. Radney, for plaintiff. West & Cochran, Brooks & Shelley, and Allan D. Sanford, for defendants.

GAINES, C. J.

This is a motion to punish the respondents, one of whom is the city attorney, and the others members of the city council, of the city of Waco, for contempt in disobeying an injunction, and to command them to rescind their action in removing the plaintiff in the motion from the office of mayor of that city. The nature of the proceeding will more fully appear by a brief statement of the facts, as shown by the motion and the record in the principal case: Riggins was mayor of the city of Waco; having in April, 1902, been elected to that office for the term of two years. With the view of removing him from office, on the 11th day of September, 1902, certain of the respondents filed charges against him before the city council, accompanied by a resolution for his removal from office, and caused him to be cited to appear and answer the charges. On the 16th day of the same month he presented to the Honorable William Poindexter, judge of the Eighteenth judicial district of the state, a petition praying an injunction restraining the city council from proceeding with the trial upon the charges as presented. Thereupon Judge Poindexter indorsed his flat upon the petition as follows: "In Chambers. Meridian, Texas, September 16th, 1902. It having been represented to me that Judge Scott, of the Fifty-Fourth district court, is absent from the state; that, in the opinion of counsel for plaintiff, under the peculiar circumstances of this case, Judge Surratt, of the Nineteenth district court, is disqualified from sitting in this case,—I take jurisdiction, and hereby direct the clerk of the Fifty-Fourth district court to file this petition, and cite the defendants to appear before Judge Scott, Judge of the Fifty-Fourth district court, at the courthouse in Waco, on Friday, the twenty-sixth (26th) day of September, then and there to show cause why permanent injunction should not issue, and to issue restraining order to defendants, as herein prayed, pending such hearing. Petitioner to enter into bond as conditioned by law in the sum of five hundred dollars ($500)." The petition was on the 18th of September filed in McLennan county, in the Fifty-Fourth district court, of which Judge Scott was the duly elected and qualified judge. Bond having been given, the clerk, in pursuance of the flat, issued the writ of injunction, which was by the sheriff immediately served. Thereupon, on the same day, a motion was filed in that court for a dissolution of the restraining order for want of equity in the bill, and, the motion having been heard, the order was dissolved. The plaintiff having declined to amend, the petition was dismissed. Thereupon the plaintiff appealed to the court of civil appeals. While the appeal was pending, and during the vacation of that court, a motion was presented to two of the justices of that court representing that the appellees were about to violate the injunction which had been ordered to be issued by the judge of the Eighteenth judicial district, and praying that they be enjoined from so doing. After a hearing the motion was granted, and a restraining order was issued, commanding the respondents to refrain from further disobedience "of the order granting the temporary injunction, and from any interference with the jurisdiction of this court [meaning the court of civil appeals] during the pendency of this cause." On the 29th day of October the court of civil appeals decided the cause, and affirmed the judgment of the trial court. A motion for a rehearing was seasonably filed, and was overruled on December 3d. On the next day the appellant, Riggins, filed in this court his application for a writ of error to the court of civil appeals. On the same day, but at a later hour, the city council proceeded with the trial of the charges against the mayor, and, after hearing the evidence, passed a resolution removing him from office.

Proceeding upon the theory that the restraining order of Judge Poindexter was a continuing one, and that the order of dissolution was suspended by the appeal, and also that the injunction issued by the judges of the court of civil appeals continued in force until the application for the writ of error had been disposed of in this court, this motion was filed. The questions, therefore, are: (1) Was the order of Judge Poindexter a continuing order, which was kept in force by the appeal, or was it merely a temporary provision, which was to have effect only until the day named therein for a hearing, or until it could be heard in the district court of the Fifty-Fourth district? (2) Did the injunction of the court of civil appeals have any effect after the final disposition of the case by that court? And (3) did the jurisdiction of the supreme court attach upon the filing of the application for the writ of error, so that, in the event either injunction had not expired, it became the duty of this court to enforce it?

We understand that, under the practice of the American courts, three species of injunctions may be issued: (1) A restraining order, which is defined to be: "A restraining order is an interlocutory order made by a court of equity upon an application for an injunction, and as...