Shelton v. City of Abilene

• Decision Date: 26 October 1934
• Docket Number: No. 1435.,1435.
• Citation: 75 S.W.2d 934
• Parties: SHELTON et al. v. CITY OF ABILENE et al.
• Court: Texas Court of Appeals

Page 934

75 S.W.2d 934

SHELTON et al. v. CITY OF ABILENE et al.

No. 1435.

Court of Civil Appeals of Texas. Eastland.

October 26, 1934.

Appeal from District Court, Taylor County; M. S. Long, Judge.

Suit by S. M. Shelton and others against the City of Abilene and others. From an adverse decree, plaintiffs appeal. On appellants' motions for certiorari to perfect the record, for mandamus to fix amount of supersedeas bonds, and for injunction.

Motions overruled.

Davidson, Doss & McMahon, of Abilene, for appellants.

Wiley L. Caffey and Wagstaff, Harwell, Wagstaff & Douthit, all of Abilene, and T. S. Christopher, of Austin, for appellees.

HICKMAN, Chief Justice.

In this cause appellants have presented four motions with which this opinion deals, as follows:

(1) For writ of certiorari to perfect the record.

(2) For writ of mandamus to compel the Honorable M. S. Long, district judge, to fix the amount of a supersedeas bond.

(3) For this court to fix the amount of a supersedeas bond.

(4) For an injunction to be issued out of this court to preserve the subject-matter in status quo pending the appeal.

On October 6, 1934, S. M. Shelton and forty other residents of the city of Abilene presented to the Honorable M. S. Long, district judge, in chambers, their petition for injunction against the city of Abilene, Texas & Pacific Railway Company, Hon. W. R. Ely, Hon. John Wood, and Hon. D. K. Martin, members of the state highway commission of Texas, and Gibb Gilchrist, highway engineer. The purpose of the suit was to restrain the building and construction of an underpass for vehicular and pedestrian traffic diagonally across certain property owned by the railway company in the city of Abilene, which property, on the original map or plat of the town of Abilene, was reserved for railway purposes. The theory of the plaintiffs was that, as remote grantees of the railway company, they had certain vested rights and overriding servitudes in this strip of property marked on the original map "reserved for railway purposes" which would be invaded and trespassed upon by the construction of the underpass; that to construct such underpass would be dedicating this strip of land to some other purpose than for railway purposes. The petition prayed that a fiat be indorsed thereon directing the issuance of a temporary writ of injunction, which fiat should require the clerk of the court to issue notice to the defendants to appear on a day certain to show cause, if any, why said temporary injunction should not be made permanent. Further prayer was that upon final hearing the court make and enter its judgment granting to the petitioners a permanent injunction in accordance with the allegations of their petition. Because of the questions presented with regard to the nature of the writ directed to be issued by the judge's fiat, it is deemed advisable to set out that fiat in full. It is as follows:

"The foregoing petition having been presented to me in chambers, it is on this 6th day of October, 1934, ordered that the temporary injunction therein prayed for be and the same is hereby in all things granted upon said plaintiffs giving bond herein, conditioned as required by law, in the penal sum of $1000.00, and that the clerk of this court is hereby directed to issue notice to said defendants and each of them to be and appear before me at my office at the courthouse in Abilene, Taylor County, Texas, on the 10th day of October, 1934, at 9 o'clock A. M., then and there to show cause, if any, why said injunction as prayed for should not be made permanent; the clerk of this court shall, at the time of issuing said notice, also issue temporary writs of injunction to said defendants and each of them, commanding and restraining said defendants and each of them directly and indirectly, their agents, executives, officers, servants and employees, from doing each and all of the things enumerated in the foregoing petition. This temporary restraining order shall cease on Wednesday October 10th, 1934, unless extended by order of this court.

                                     "M. S. Long, Judge."
                

On October 10th, each of the defendants appeared and answered, and, instead of a hearing before the judge on the question of whether a temporary writ of injunction should issue pendente lite, the case was tried by agreement by the court on its merits. After hearing the evidence, the court took the case under advisement until October 13th, at the same time continuing the temporary writ of injunction or restraining order until that day. On the morning of October 13th, the court rendered judgment that the plaintiffs take nothing, and that the defendants go hence without day. The judgment recited that the temporary injunction or restraining order expired upon the hearing of the case and the decision of the court. The plaintiffs sought an order continuing the injunction in force pending the appeal, which was denied. They then moved the court to fix the amount of a supersedeas bond, which the court refused to do. They thereupon had a transcript prepared and forthwith filed in this court, and at the same time filed the motions above named. In order to decide the questions presented by these various motions, it becomes necessary to determine the nature of the writ directed to be issued by the judge's fiat.

If the fiat directed the issuance of a mere restraining order, as that term is hereinafter defined, it would not be continued in force by an appeal on a supersedeas bond. Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14, 15; Fort Worth Street Ry. Co. v. Rosedale Street Ry. Co., 68 Tex. 163, 7 S. W. 381. If, on the other hand, the order was a temporary injunction, as that term is hereinafter defined, which was dissolved by the judgment appealed from, it would be kept in force by a supersedeas bond. Authorities supra and Williams v. Pouns, 48 Tex. 141.

In the case of Riggins v. Thompson, supra, Chief Justice Gaines defines the three species of injunctions which may be issued under the practice of American courts, as follows: "(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 part of the motion for a preliminary injunction, by which the party is restrained pending the hearing of the motion.' Bouv. Law Dict. (2d Ed.). (2) One which is intended to operate, and which does operate unless dissolved by an interlocutory order, until the final hearing. And (3) a perpetual injunction, which can be properly ordered only upon the final decree."

The fiat above copied so obviously ordered the issuance of a mere restraining order under the authorities that a discussion of that question would be useless. Riggins v. Thompson, supra; Ex parte Zuccaro, 106 Tex. 197, 163 S. W. 579, Ann. Cas. 1917B, 121; Fort Worth Street Ry. Co. v. Rosedale Street Ry. Co., supra; Beirne v. North Texas Gas Co. (Tex. Civ. App.) 221 S. W. 301; Garitty v. Halbert (Tex. Civ. App.) 225 S. W. 196; City of Jacksonville v....