Ross v. State, 10130.

• Decision Date: 16 October 1936
• Docket Number: No. 10130.,10130.
• Citation: 97 S.W.2d 505
• Parties: ROSS v. STATE ex rel. SHOOK, Cr. Dist. Atty.
• Court: Texas Court of Appeals

97 S.W.2d 505

ROSS v. STATE ex rel. SHOOK, Cr. Dist. Atty.

No. 10130.

Court of Civil Appeals of Texas. San Antonio.

October 16, 1936.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit for injunction by the State, on the relation of John R. Shook, Criminal District Attorney, against Hal J. Ross. From a judgment for plaintiff, defendant appeals, and the state files a motion for contempt.

Motion denied, and respondent discharged.

Conger, Low & Spears, of San Antonio, for appellant.

John R. Shook and W. C. Linden, both of San Antonio, for appellee.

SMITH, Chief Justice.

On October 7, 1936, the district court granted a permanent prohibitory injunction restraining Hal J. Ross from conducting a physical "endurance contest" in violation of the terms of article 614b, Vernon's Tex. Ann.P.C. (Acts 1934, 43d Leg. 2d Called Sess. p. 131, c. 62). Ross gave notice of appeal, and upon his motion the trial judge fixed the amount of supersedeas bond on appeal required in the case. Ross tendered a proper bond in the amount fixed, and the clerk duly approved and filed the bond. Transcript of the record has been duly filed in this court, and the cause is now regularly before this court for disposition.

Pending disposition on the merits, the state, through its district attorney, has filed a motion in this court, alleging that Ross has wholly disregarded, and has willfully disobeyed, the terms of the injunction by continuing to conduct and operate said endurance contest (which was already in operation at the time the injunction was issued). Upon those allegations the state prays that, upon hearing, Ross be adjudged to be in contempt of this court, by reason of said disobedience of said injunction. Ross has appeared and answered to said motion and admits that he has disregarded and violated said injunction, as charged, but contends he cannot be held to be in contempt of the court, for the stated reason that the filing of the approved supersedeas bond in the amount fixed by the trial court for the purpose operated to stay the injunction pending decision on the merits in this court.

It seems to be now well settled in this state that the operation of a permanent prohibitory injunction, issued by a district court, may be suspended—stayed—by the filing of a duly approved supersedeas bond in an amount fixed by the trial judge, and, this being true, persons affected by the restraining order are not bound to observe and obey that order pending appeal, or unless restrained by original order issued by the appellate court. Articles 2270, 2275, R. S. 1925, and article 2249 as amended by Acts 1927, c. 52, § 1 (Vernon's Ann.Civ.St. art. 2249); Waters-Pierce Oil Co. v. State, 107 Tex. 1, 106 S.W. 326, 330; Houtchens v. Mercer, 119 Tex. 431, 29 S.W.(2d) 1031, 69 A.L.R. 1103; Garrett v. Stokes (Tex. Civ.App.) 41 S.W.(2d) 694; Haley v. Walker (Tex.Civ.App.) 141 S.W. 166; Aetna Club v. Jackson (Tex.Civ.App.) 187 S. W. 971.

In support of its contention that the filing of supersedeas bond did not have the effect of staying the injunction, the state cites and relies upon the cases of Ford v. State (Tex.Civ.App.) ...