Smith v. Coleman

• Decision Date: 20 April 1939
• Docket Number: No. 2197.,2197.
• Citation: 127 S.W.2d 928
• Parties: SMITH et al. v. COLEMAN.
• Court: Texas Court of Appeals

127 S.W.2d 928

SMITH et al. v. COLEMAN.

No. 2197.

Court of Civil Appeals of Texas. Waco.

April 20, 1939.

Rehearing Denied May 11, 1939.

Appeal from District Court, Seventy-Seventh District, Freestone County; H. F. Kirby, Judge.

Suit in equity by Ben Coleman against Lon A. Smith and others, members of the State Railroad Commission, and another, for a temporary restraining order, enjoining defendants from causing the arrest of plaintiff's truck drivers or interfering with plaintiff, his drivers and trucks while engaged in interstate commerce. From a judgment granting a temporary restraining order and an order to show cause why it should not be made into a temporary injunction, defendants appeal.

Reversed, and injunction dissolved.

Gerald C. Mann, Atty. Gen., and Geo. W. Barcus and Glenn R. Lewis, Asst. Attys. Gen., for appellants.

Carter & Garonzik and Howard Barker, all of Dallas, for appellee.

GEORGE, Justice.

Ben Coleman, doing business as Coleman Brothers Transfer Company, on February 23, 1939, instituted in the 77th Judicial District Court of Freestone county an injunction suit against the members of the Railroad Commission of Texas and J. R. Sessions, sheriff of Freestone county, Texas, praying for the issuance of a temporary restraining order enjoining the defendants individually and in their official capacities, their agents, servants and employees, from causing either directly or indirectly the arrest of appellee's drivers or in anyway the molestation of or interference with appellee, his drivers and his trucks while engaged in interstate commerce; that a hearing on the cause be had, and that a temporary injunction, with like restraint, issue, and that upon final hearing the temporary injunction be made permanent. The Honorable H. F. Kirby, judge of the court, on the same day, upon appellee's verified petition being presented to him, without notice to and hearing of appellants, entered the following fiat: "You are hereby ordered and directed to issue a temporary restraining order to the defendants, and each of them, herein restraining said defendants, their agents, servants and employees from causing, either directly or indirectly, in any way the molestation, arrest or interference with the plaintiff and his trucks and truck drivers and employees, and from in any manner interfering with the operation of trucks belonging to the plaintiff while engaged in interstate commerce over highway No. 75 between Houston and Dallas, and highway No. 80 between Dallas and Fort Worth, and highway No. 6 between Houston and Waco, and highway No. 6 between Waco and Dallas, and from in any way impeding, hindering or interfering with plaintiff's business in the transportation of property in interstate commerce in any manner whatsoever upon plaintiff's executing a good and sufficient bond, conditioned as required by law, in the sum of $1000.00, such temporary restraining order to remain in full force and effect until changed by further order of this court. You will further notify said defendants, and each of them, to appear in this court on the 1st day of May, 1939, at 9:00 A. M. to show cause, if any they have, why this temporary restraining order should not be made into a temporary injunction pending a final hearing in this cause. Entered this the 23rd day of February, 1939." From which order the members of the Railroad Commission and J. R. Sessions have appealed.

The principal questions involved in this cause are (1) whether the order of the trial judge is in effect and in fact a temporary injunction from which an appeal lies; and (2) whether the Texas Motor Carriers Law, insofar as it requires motor carriers of freight for hire in interstate commerce over Federal aided Texas highways to obtain a certificate or permit from the Railroad Commission before engaging in such business, has been superseded by the Federal Motor Carrier Act of 1935, 49 U.S.C.A. § 301 et seq.

Appellee has filed in this court a motion to dismiss the appeal on the ground that the order embodied in the fiat amounts only to a temporary restraining order and vigorously insists that no appeal lies therefrom. We recognize that, under the practice of our 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 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." Riggins v. Thompson, 96 Tex. 154, 71 S.W. 14; Fort Worth Street R. Co. v. Rosedale Street R. Co., 68 Tex. 163, 7 S.W. 381; Ex parte Zuccaro, 106 Tex. 197, 163 S.W. 579, Ann. Cas.1917B, 121. And there is authority to the effect that no appeal lies from a mere temporary restraining order. Nall v. Malley, Tex.Civ.App., 55 S.W.2d 593; Lokey v. Elliott, Tex.Civ.App., 88 S.W.2d 126; 24 Tex.Jur. sec. 234, p. 291; Railroad Commission of Texas v. Real, Tex.Civ. App., 80 S.W.2d 494; Allred v. Beggs, 125 Tex. 584, 84 S.W.2d 223, par. 1. But the purpose of the order is obvious on an examination of the entire record. The 77th Judicial District Court of Freestone County, Texas, convened in regular session on the first Monday in February, 1939, same being February 6, 1939, and continued in session for four weeks—that is until and inclusive of Saturday, March 4, 1939. The return day of the next term of that court is May 1, 1939, the day on which the clerk was directed in the order to notify appellants to appear and show cause why the designated temporary restraining order should not be made into a temporary injunction. The order restrains appellants from doing each and every thing complained of by appellee. No reason is suggested why hearing could not have been had within a week or ten days to determine whether a temporary injunction should issue. It appears that appellants were ready to meet the issues presented within such indicated period of time. The absence of any allegation of facts tending to show cause for granting of what is styled a temporary restraining order, extending from February 23, 1939 to May 1, 1939, the return day of the next term of court, is significant. The cause was subject to preliminary hearing after due notice at any time prior to as well as on and after May 1, 1939, and it would be subject to final hearing on and at any time after May 1, 1939, provided due service should be had. It is to remain in full force and effect until changed by further order of the court. The language of the petition and fiat indicates an intention to give to appellee all the protection of a temporary injunction for at least a period of time in excess of two months and until the order of the court is changed rather than to preserve the subject matter of the litigation and its status quo until a hearing could be had to determine whether a temporary injunction should issue and continue in force pending a hearing on the merits. It is also apparent that it is becoming a practice of those who desire to conduct their business in opposition to the law to secure what is styled a restraining order in an attempt to secure the benefits of an injunction for an unreasonable length of time and at the same time prevent an appeal from such order by what is commonly known as a technicality in our procedure. The fact that the order contained in the fiat was called a temporary restraining order is not controlling in determining the...