State v. Perkins, 6118.

• Decision Date: 05 October 1944
• Docket Number: No. 6118.,6118.
• Parties: STATE v. PERKINS et al.
• Court: Texas Court of Appeals

185 S.W.2d 1019

STATE v. PERKINS et al.

No. 6118.

Court of Civil Appeals of Texas. Texarkana.

October 5, 1944.

Rehearing Denied November 2, 1944.

Appeal from District Court, Lamar County; A. S. Broadfoot, Judge.

Suit by the State against S. B. Perkins and others for a temporary injunction against maintenance of an alleged liquor nuisance, for a permanent injunction against such violation, and for other relief. The suit was dismissed for want of prosecution, and from a decree overruling plaintiff's motion to set aside the order of dismissal and to reinstate the case, plaintiff appeals.

Affirmed.

Judgment reversed 185 S.W.2d 975.

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

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

WILLIAMS, Justice.

This injunction action brought under the provisions of Article 1, Section 29, of the Texas Liquor Control Act by the State of Texas, Vernon's Ann.P.C. Art. 666 — 29, acting by and through the Texas Liquor Control Board, appellant here against S. B. Perkins, doing business as Gibralter Hotel, L. B. Campbell, Sr., Nathan Savage, J. S. McClinton, and five others unnecessary to name, was dismissed December 27, 1943. Appellant appeals from a decree of the trial court dated January 5, 1944, wherein said court overruled plaintiff's motion filed December 30, 1943, to set aside the order of dismissal and reinstate the case.

Appellant, under points presented, contends that the trial court erred when the main suit was dismissed on December 27th, because (1) on said date the only matter for consideration before the court was plaintiff's application for a temporary injunction, that is, whether to refuse or to grant a temporary injunction; (2) the cause had not been regularly set for trial; and (3) the trial court abused his discretion in dismissing the suit and refusing to reinstate same.

In the petition, which was verified, the state prayed that notice issue to the above defendants to appear and show cause why a temporary injunction should not be granted against them, temporarily enjoining and restraining them from maintaining a nuisance, as that term is defined by the Texas Liquor Control Act, on the premises of the Gibralter Hotel, and from unlawfully selling or possessing for the purpose of sale on the premises intoxicating beverages and from knowingly permitting said premises to be used as a place for such purposes until the further order of this court. Plaintiff further 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 and restraining them * * * from maintaining * * * a nuisance at and on said premises * * * and that this Honorable Court order said building to be closed and padlocked for a period of one year from final date of said judgment * * *."

This petition was presented to the District Court of the Sixth Judicial District, who on November 29, 1943, affixed his fiat, which reads:

"It appearing from the facts therein that the applicant is entitled to have said cause set down for hearing at an early date, and that notice of hearing of plaintiff's application for temporary injunction should issue:

"It is accordingly ordered that the clerk of this court issue notice to the defendants * * * (naming them) * * * commanding them * * * to appear before the judge of this court * * * on the Monday next after the expiration of 20 days after service of 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 this court, which show cause order shall be accompanied by a true, correct and certified copy of the above * * * petition and Judge's fiat attached thereto."

Thereupon process was issued which commanded each of the defendants to "appear and answer the plaintiff's petition at or before 10:00 A. M. of the Monday next after the expiration of 20 days from the service hereof" before the Honorable District Court of Lamar County at the Courthouse in Paris, Texas." The process issued in all respects complied with the provision of Rule 101, Texas Rules of Civil Procedure, with respect to the contents of a citation. A certified copy of the petition attached to above citation also contained the judge's fiat, above set out. No notice was issued or served upon any defendants to appear and "show cause why a temporary injunction should not be granted," unless the contents of above citation together with copy of petition and judge's fiat attached thereto should be construed as a "show cause notice." Service being had for the length of time and in the manner required by law, Monday, December 27, 1943, which was in term time of said court, became and was appearance day for all the defendants except Savage and McClinton. Rule 237, Texas Rules of Civil Procedure. The latter two were never served, being then and now residents of California.

Under the record as above detailed, the court was clothed with legal power on December 27, 1943, to have then heard that portion of plaintiff's petition which prayed for a permanent injunction and enter a decree pursuant to his or the jury's findings based on the facts developed in such a trial. The petition stated a cause of action and also contained a prayer for such relief. Citation in the manner and for the length of time required by law had been obtained. Such date was during a regular term of court. The two party defendants not served were not necessary parties, having theretofore been discharged from service. They owned no interest in the premises. Injunctive relief, to abate an alleged...