Robinson v. Theis

• Decision Date: 11 April 1923
• Docket Number: (No. 7008.)
• Citation: 252 S.W. 249
• Parties: ROBINSON et al. v. THEIS et al.
• Court: Texas Court of Appeals

252 S.W. 249

ROBINSON et al. v. THEIS et al.

(No. 7008.)

Court of Civil Appeals of Texas. San Antonio.

April 11, 1923.

On Motion to Retax Costs, May 16, 1923.

Appeal from District Court, Bexar County; R. B. Minor, Judge.

Suit for injunction by F. Theis, Sr., and others, against A. Robinson and others. From an order to show cause why a temporary injunction should not be granted and an order for a restraining order ending the further order of the court, defendants appeal. Appeal dismissed.

Cobbs & Wiggin, of San Antonio, for appellants.

S. Engleking, of San Antonio, for appellees.

SMITH, J.

Theis and others brought this action against Robinson and others, praying for a "temporary restraining order and a writ of temporary injunction," and, upon "final hearing," for a perpetual injunction, restraining Robinson and his associates from establishing a cemetery at a certain location about two miles southeast of the corporate limits of the city of San Antonio. The same controversy was the subject of a different action recently disposed of in this court, No. 6965, J. L. Farb et al. v. F. Theis et al., 250 S. W. 290. In the present suit the trial court entered the following order:

"When the plaintiffs shall have given a bond in the sum of $500, conditioned as required by the statute, the clerk will issue notice to the defendants requiring them to appear before the court on the 4th day of April, 1923, at 10 o'clock a. m., then and there to show cause why the temporary injunction herein prayed for should not be granted, and the clerk will also issue a restraining order addressed to said defendants requiring them to refrain until further order of this court from any of the acts herein sought to be enjoined."

In view of the disposition to be made of this appeal it should be added that the court was in session at a regular term at the time the foregoing order was made. No appearance was made for the defendants, and the order appears to have been granted upon the petition, and without notice.

We are at once confronted with the question of whether or not the order entered is one from which an appeal could properly be taken. It is contended by appellees that the relief granted was a "temporary restraining" order, and that it was not a "temporary injunction"; that while an appeal can properly be taken from an order granting a temporary injunction, no appeal can properly be taken from a "temporary restraining order." The question presented is an interesting one, and its solution is rendered obscure by a number of decisions which do not all co-ordinate by any means. Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14; Baumberger v. Allen, 101 Tex. 352, 107 S. W. 526; Ex parte Zuccaro, 106 Tex. 197, 163 S. W. 579, Ann. Cas. 1917B, 121; Hoskins v. Cauble (Tex. Civ. App.) 198 S. W. 629; Houston Ice & Brewing Co. v. Clint (Tex. Civ. App.) 159 S. W. 409; Soto v. State (Tex. Civ. App.) 171 S. W. 279; Holbein v. De La Garza, 59 Tex. Civ. App. 125, 126 S. W. 42; Holman v. Cowden (Tex. Civ. App.) 158 S. W. 571; Beirne v. Gas Co. (Tex. Civ. App.) 221 S. W. 301; Griffith v. State (Tex. Civ. App.) 210 S. W. 293; Hartzog v. Seeger Co. (Tex. Civ. App.) 163 S. W. 1055; Caswell v. Fundenberger, 47 Tex. Civ. App. 456, 105 S. W. 1017; Jaynes v. Burch (Tex. Civ. App.) 151 S. W. 596; City of Houston v. Richter (Tex. Civ. App.) 157 S. W. 189; Berger v. De Loach, 52 Tex. Civ. App. 242, 113 S. W. 557; Walstein v. Nicholson, 47 Tex. Civ. App. 359, 105 S. W. 207; Cole v. Forto (Tex. Civ. App.) 155 S. W. 350. But, as the appeal must be dismissed upon another ground, we will not discuss or undertake to decide the jurisdictional question mentioned.

It will be observed that in the restraining order, which was made on March 29th, the trial court set the matter for hearing on April 4th, on which date the defendants were required to "show cause why the temporary injunction herein prayed for should not be granted," and that the defendants were restrained from doing the acts complained of "until further order" of that court. The restraining order was provisional in its nature, and obviously was made only to prevent the threatened acts until the hearing, set for April 4th, at which time the court intended to ascertain from evidence whether the temporary injunction prayed for should be granted or denied. Such being the court's intention, the restraining order will be construed and given effect in consonance with that intention, and by that construction it was rendered effective until the date named, but no longer; and by its own terms, as so construed, it expired on April 4th. In other words, when the object in view is considered, the order will be construed to require the defendants to refrain "until April 4th" from doing the things complained of, instead of "until further order of the court." Ex parte Zuccaro, 106 Tex. 197, 163 S. W. 579, Ann. Cas. 1917B, 121; Griffith v. State (Tex. Civ. App.) 210 S. W. 293.

Prior to the decision in the Zuccaro Case the rule had been established that when in cases like this the restraining order was by its own terms made effective "pending the hearing" therein provided for, such order operated only until the date fixed for the hearing, and terminated on that date, regardless of whether the hearing was then had or not. Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14. In the Zuccaro Case this rule was extended to embrace cases where the injunction was made effective "until further order" of the court, as in this case. The order appealed from in the Zuccaro Case was of the precise effect as the order in the instant case; it was issued on January 27th, the hearing was set for February 3d, and the defendants restrained "until further orders of this court." Subsequent to February 3d, and...