Speed v. Keys, 2055.

• Decision Date: 04 November 1937
• Docket Number: No. 2055.,2055.
• Citation: 110 S.W.2d 1245
• Parties: SPEED v. KEYS.
• Court: Texas Court of Appeals

110 S.W.2d 1245

SPEED v. KEYS.

No. 2055.

Court of Civil Appeals of Texas. Waco.

November 4, 1937.

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

Suit for an injunction by Thomas Keys against Renfro Speed, as the County Attorney, and others. From a temporary restraining order, named defendant appeals and plaintiff moves to dismiss the appeal.

Motion denied, order reversed, and injunction dissolved.

See also (Tex.Sup.) 109 S.W.2d 967.

Renfro Speed, of Teague, for appellant.

Geppert, Geppert & Victery, of Teague, for appellee.

ALEXANDER, Justice.

This is an appeal from a temporary order of the trial court, restraining Renfro Speed, as the county attorney, J. R. Sessions, as the sheriff, and others, of Freestone county, from interfering with the operation of certain marble machines owned and operated by the plaintiff. The plaintiff alleged, in substance, that he was the owner of forty automatic marble machines, known as marble tables, which he desired to lease out and place in operation in various public places in Freestone county, but that the county attorney, sheriff, and others have forbidden the operation of said machines in said county on the ground that same were gambling devices prohibited by law, and that said defendants were threatening to seize said machines and to arrest the plaintiff and others who attempted to operate them and would do so unless restrained by the court. On August 5, 1937, at an ex parte hearing and without the introduction of any evidence, the trial court directed the clerk "to issue a temporary restraining order, operative until and pending the hearing below ordered, restraining the defendants * * * from seizing any of the machines described in said petition * * * and from molesting, arresting, or in any manner interfering with, directly or indirectly, complainant, his agents and lessees in the operation of said machines * * *. The Clerk of this court shall quote this fiat and embody such order in a writ which shall also require the defendants to appear in the court room of this court, at Fairfield, Freestone county, Texas, on the 22nd day of November, 1937, to show cause why a temporary injunction should not be granted upon such petition, effective until final decree in such suit." From this order the defendant Renfro Speed has attempted to prosecute an appeal.

Appellee has moved to dismiss this appeal on two grounds; First, because no proper appeal bond was given and the procedure authorizing the prosecution of an appeal on affidavit of inability to give security for costs was not properly followed; and, second, because the order attempting to be appealed from is a temporary restraining order as distinguished from a temporary injunction and it is contended that under the statute no appeal lies therefrom.

The order appealed from was entered on the 5th day of August, 1937. On the 14th day of August, Renfro Speed, one of the defendants, filed his affidavit in statutory form, in lieu of an appeal bond, in which he swore that he was unable to pay the costs of appeal or any part thereof or to give security therefor. On August 23, 1937, the plaintiff, Thomas Keys, filed a controverting affidavit, in which he swore that the said Renfro Speed was able to give security for costs of appeal. The transcript was filed in this court on August 25, 1937. No statement of facts has been filed, and the transcript does not contain any certificate of the trial judge or of the county judge showing that any evidence was introduced in support of the contest or that a ruling was invoked thereon. In the absence of such showing, we must presume that no evidence was introduced by appellee and that appellee did not invoke a ruling on such contest. The material question to be determined is: Whose duty was it to introduce evidence and procure a ruling of the trial judge on the issue as to appellant's right to appeal without bond? If this duty rested on appellant, then he has failed to meet the requirements and the appeal must be dismissed; but if such duty rested on appellee, he has not properly contested appellant's affidavit, and the motion to dismiss the appeal on this ground must be overruled.

Prior to the last amendment (Acts 1931, c. 134, § 1 [Vernon's Ann.Civ.St. art. 2266]) to Revised Statutes, art. 2266, which provides for the appealing of a case on affidavit of inability to pay costs, that article merely provided that a party attempting to so appeal a case shall be required to "make strict proof of his inability to pay the costs, or any part thereof. Such proof * * * shall consist of the affidavit of the party stating his inability to pay the costs; which affidavit may be contested by any officer of the court or party to the suit, whereupon [it shall be the duty of] the court trying the case * * * [to] hear evidence and [to] determine the right of the party [under this article] to his appeal." The Supreme Court, in discussing the effect of the mere filing of an unsworn answer controverting appellant's affidavit of inability to pay the costs and the failure on the part of appellee to introduce any evidence in support thereof, said: "The plaintiff filed an affidavit in lieu of an appeal bond, which stated all the facts required by the statute. This was all the proof of inability which the law required, so long as it was uncontested. The defendant filed a paper, unverified by oath, which merely denied the statements of the affidavit and affirmed in general terms the ability of the plaintiff to give security for, or pay, the costs. No evidence it is claimed was offered by either party, and the proposition is that the burden was on the appellant after the affidavit had been so contested to offer further proof of inability. We do not think the effect of the affidavit could be destroyed in this way. While the statute does not prescribe the manner in which the affidavit may be contested, it does say that the proof of inability required shall consist of the affidavit. It then allows a contest of it, and, when there is a contest, provides that it is the duty of the judge `to hear evidence and determine the right of the party to his appeal.' This does not in our opinion entitle an appellee by an...