State v. Perkins

• Decision Date: 14 February 1945
• Docket Number: No. A-374.,A-374.
• Citation: 185 S.W.2d 975
• Parties: STATE v. PERKINS et al.
• Court: Texas Supreme Court

185 S.W.2d 975

STATE v. PERKINS et al.

No. A-374.

Supreme Court of Texas.

February 14, 1945.

Rehearing Denied March 14, 1945.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Suit by the State of Texas against S. B. Perkins and others for a temporary injunction against maintenance of alleged nuisance in violation of State Liquor Control Act, for a permanent injunction against such violation, and for other relief. A judgment dismissing the suit for want of prosecution and refusing to set aside order of dismissal and refusing to reinstate the case on the docket was affirmed by the Court of Civil Appeals, 185 S.W.2d 1019, and the State brings error.

Reversed and remanded with directions.

Grover Sellers, Atty. Gen., and Eugene Alvis, Jesse Owens, and Ocie Speer, Asst. Attys. Gen., for petitioner.

C. M. Smithdeal, of Dallas, and Long & Wortham and O. B. Fisher, all of Paris, for respondents.

TAYLOR, Commissioner.

This was a suit for temporary injunction and for further relief upon a hearing on the merits. The question involved is whether the trial court erred in dismissing this cause for want of prosecution prior to service on all of the defendants, and before a setting and call thereof for trial on the merits.

The theory upon which the trial court acted in dismissing the entire cause was that the plaintiff had abandoned the prosecution of its suit. The court's action was taken upon the basis of the following facts: "On November 29, 1943, the State, through its Liquor Control Board, represented by its attorney general, presented to the district court its petition praying that notice be issued to S. B. Perkins, the Gibraltar Hotel, L. B. Campbell and eight other named defendants, to appear and show cause why they, and each of them, should not be temporarily enjoined from maintaining on the hotel premises an alleged nuisance, as that term is defined by the State Liquor Control Act, Vernon's Ann. P.C. art. 666—1 et seq. and from violating other specified provisions of the Act until the further order of this court." The applicant, in addition to seeking and praying for a temporary injunction, sought also, and accordingly prayed, "that said defendants be cited to appear and answer herein as required by law, and that on final hearing hereof on the trial of said cause on its merits, that the plaintiff have judgment against the defendants, and each of them, abating said nuisance and permanently and perpetually enjoining them * * *, from violating the provisions of the Texas Liquor Control Act in any way or manner on and at the premises herein set out * * *, and that this honorable court order said building * * * closed and padlocked for * * * one year * * * or until such time as the owner * * * or lessee thereof shall give bond * * * for not less than $1,000.00, conditioned as required by law, and for costs of suit * * *."

The trial court, on presentation of the petition, affixed his fiat (dated November 29, 1943) ordering, among other things, the issuance by the clerk of "notice of hearing of plaintiff's application for temporary injunction," notifying the "defendants, * * *, and to each of them, to appear before the judge of this court * * *, on the Monday next after the expiration of 20 days after service of such notice, at 10:00 A.M. to show cause, if any they have, why a temporary injunction should not be granted on such petition, effective until the further orders of the court." (All emphasis ours.) The court also directed in his fiat that such "show-cause order be accompanied by a * * * certified copy of the * * * petition and judge's fiat * * *." The clerk, accordingly, on the day the petition was filed, issued a show-cause notice to defendant Perkins, to which was attached, in compliance with the court's order, a copy of the petition, together with the fiat thereon, setting the hearing for the temporary writ applied for. On the following day (November 30, 1943) such notices were issued to the other defendants, respectively. All except four (Perkins and Campbell and two others) were served with the notice on November 30th. Perkins and Campbell were served December 1st. Two of the defendants had not been served at the time the court dismissed the case.

We assume for present purposes, without deciding, that the show-cause notices were sufficient to meet the requirements of rule 101, Texas Rules of Civil Procedure, as to the contents of citations, and that service of the notice on either November 30th or December 1st constituted December 27th appearance day for the filing of answers by the defendants served. Rule 237, Texas Rules of Civil Procedure. It does not appear that any of the defendants filed answers on that date or that there was a regular call by the court of his docket on that date, or that the cause had been placed on a trial calendar, or that the case had been set for trial on its merits, by agreement or otherwise. Perkins and Campbell appeared on December 27th before the court, according to the recitals of the order of dismissal, in person and by counsel. The order further discloses that they announced to the court that they were prepared to disprove the allegations of the state's petition, that the suit was defamatory as against them and the defendant...