West Texas Utilities Co. v. Farmers' State Bank

• Decision Date: 02 February 1934
• Docket Number: No. 1303.,1303.
• Citation: 68 S.W.2d 648
• Parties: WEST TEXAS UTILITIES CO. et al. v. FARMERS' STATE BANK IN MERKEL.
• Court: Texas Court of Appeals

Page 648

68 S.W.2d 648

WEST TEXAS UTILITIES CO. et al. v. FARMERS' STATE BANK IN MERKEL.

No. 1303.

Court of Civil Appeals of Texas. Eastland.

February 2, 1934.

Appeal from District Court, Taylor County; W. R. Chapman, Judge.

Suit by the Farmers' State Bank in Merkel against the West Texas Utilities Company and others. From an order granting a temporary injunction, defendants appeal.

Temporary injunction dissolved.

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

Scarborough & Ely, of Abilene, for appellee.

LESLIE, Justice.

On November 1, 1933, the West Texas Utilities Company obtained a judgment against Sam Swann, and thereafter on November 22d it had an execution issued on the judgment, and caused the sheriff of Taylor county to levy the same on fifty-eight bales of cotton as the property of said Swann. The sheriff immediately advertised the cotton for sale. December 12, 1933, the petition for injunction in the instant case was presented to the district judge in chambers by the Farmers' State Bank in Merkel, the plaintiff in this cause. The bank's suit may be interpreted to assert title and lawful possession of the cotton in itself on November 21, 1933, and at the time of the seizure of the cotton. Along about November 22, 1933, said sheriff levied upon and seized the property. The sheriff and the Utilities Company were made defendants in the bank's suit as well as Sam Swann, who was alleged to be claiming some interest in the cotton adverse to that asserted by the bank. According to the prayer of the petition, a temporary injunction was granted preventing the sale of said cotton pending the final determination of the issues involved in the suit. It is from this order that the appeal is taken to this court by the company.

By appellants' first proposition, it is contended that the appellee's bill is fatally defective, in that it fails to allege any reason why it did not resort to its statutory remedy of trial of right of property by filing an affidavit and claimant's bond, thereby resorting to its legal remedy asserted by the appellants to be plain, adequate, and complete. Article 7402, R. S. 1925.

The appellee seeks to sustain the injunction on the theory upon which it was apparently granted, namely, that, at the time of the levy of the execution, it was the owner and in possession of the cotton, and that the sale of the same under the writ would be an act prejudicial to the rights of the bank and work an irreparable injury to it should said possession and control thus be disturbed and the cotton sold by said officer and placed in the channels and marts of trade contrary to the wishes of the bank. The injunction was awarded upon the allegations of the petition, which are accepted as facts in the disposition of this appeal.

Obviously the appellee's right to injunctive relief is predicated upon some provision of article 4642 of the Revised Statutes of 1925, which reads as follows:

"Judges of the district and county courts shall, in term time or vacation, hear and determine applications for and may grant writs of injunction returnable to said courts in the following cases:

"1. Where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.

"2. Where a party does some act respecting the subject of pending litigation or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of the applicant when said act would tend to render judgment ineffectual.

"3. Where the applicant shows himself entitled thereto under the principles of equity, and the provisions of the statutes of this State relating to the granting of injunctions.

"4. Where a cloud would be put on the title of real estate being sold under an execution against a party having no interest in such real estate subject to the execution at the time of the sale, or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law. (Acts 1907, p. 206; Acts 1909, p. 354; Const., Art. 5, Secs. 8, 16.)"

In justice to the appellee's contentions, it must be conceded that there are authorities by the courts in this state so construing parts of the above statutes as to support the appellee's theory to the right of the relief granted by the trial court. The earliest case, perhaps, is Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994, 995. However, after justifying the injunction in that case on principles of equity, the court in doing so gave utterance to the following dictum:

"While it is not necessary in this case, if we are correct in the statement of the above principles, to so hold, still we deem it proper to say that we are strongly inclined to the opinion that Rev. St. 1895, art. 2989, authorizes the injunction in this case, though the proceeding for trial of right of property and the action for damages should be held adequate remedies within the rule denying an injunction in such case at common law. The first portion of the article provides that the injunction may issue `where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief, or any part thereof, requires the restraint of some act prejudicial to the applicant.' And the latter provides that it may issue `in all other cases where the applicant for such writ may show himself entitled thereto under the principles of equity.' It will be observed that the latter portion of the article requires the case to be brought within the rules of equity, and does not undertake to state the circumstances entitling the applicant to the writ; and therefore, under it, it must appear that there is not an adequate remedy at law as that term has always been understood. But the first portion of the article does state what facts will justify the issuance of the writ thereunder, and does not require that there shall be no adequate remedy at law. In other words, it provides that the writ may issue where it appears (1) that the applicant is entitled to the relief demanded; and (2) that, in order to give such relief, the restraint of some act is necessary. In this case it appeared (1) that the trustee was entitled under the law to have and retain the goods for the purpose of subjecting them to the trust as demanded by him; and (2) that, in order for the court to accord to him such right, it was necessary to restrain defendants from taking, retaining, or selling the goods seized. This provision of the statute is most significant when it is considered that it was first incorporated into our law in the Revised Statutes of 1879, soon after the decision of Ferguson v. Herring, supra in 1878."

At the time (1897) this opinion was written by Judge Denman, the article of the statute referred to in the Sumner Case had been in effect since 1879, and between those dates numerous cases reached the Supreme Court in which injunctive relief was denied on the ground of the existence of adequate legal remedy. Spencer v. Rosenthall, 58 Tex. 4 (1882) in which an injunction against execution sale was refused: "The sale of the property could not cloud her title; and she had a plain, adequate and complete remedy at law." Purinton v. Davis, 66 Tex. 455, 1 S. W. 343 (1886); Chisholm v. Adams, 71 Tex. 681, 10 S. W. 336 (1888); Duck v. Peeler, 74 Tex. 268, 11 S. W. 1111 (1889); Galveston, etc., Co. v. Ware, 74 Tex. 47, 11 S. W. 918, 919; Beer v. Landman, 88 Tex. 450, 31 S. W. 805, by Denman, J.

Also, after the opinion in the Sumner Case, our Supreme Court, in Stephens v. T. & P. Ry. Co., 100 Tex. 177, 97 S. W. 309 (1906), denied the right to injunctive relief on the ground that plaintiff had adequate remedy at law and could obtain full justice by employing the same. In principle a like holding was made by that court in Galveston, H. & S. A. Ry. Co. v. De Groff, 102 Tex. 433, 118 S. W. 134, 21 L. R. A. (N. S.) 749 (1909).

Since the above opinions were delivered, many of like import both by the Supreme Court and the Courts of Civil Appeals, as shown by the authorities relied on in this opinion, have held that the writ of injunction will only be issued when the plaintiff brings himself within the time-honored rule by showing the inadequacy of the processes of the law. Of course, what is here said is in full recognition and in no wise in conflict with one's right to an injunction when the statute specifically authorizes it as in suit for divorce (articles 4635, 4636, R. S. 1925), nuisance, disorderly houses, gaming, etc. (articles 4664-4667, R. S. 1925), and pool halls (article 4668, R. S. 1925), and statutes of that nature. In cases thus provided for by special statute, we understand one's right to injunction is in no way restricted by requirement of showing inadequacy of legal remedy as a prerequisite to the granting of the writ. In other words, the right to an injunction in such instances would not be confined to the rules of equity jurisprudence. Texas Farm Bureau v. Stovall, 113 Tex. 273, 253 S. W. 1101; Clopton v. State (Tex. Civ. App.) 105 S. W. 994; Campbell v. Peacock (Tex. Civ. App.) 176 S. W. 774; Ames v. Ames (Tex. Civ. App.) 64 S.W.(2d) 1067; article 4663, R. S. 1925, and notes thereunder; 24 Tex. Jur. p. 70, § 49, p. 80, § 57.

The above excerpt from the Sumner Case was approvingly, but by way of dictum, referred to by our Supreme Court in the case of Southwestern T. & T. Co. v. Smithdeal, 104 Tex. 258, 136 S. W. 1049. Some of the appellate courts in this state have apparently given full effect to the interpretation of said statute indicated in that excerpt, and have accordingly upheld injunctions on such grounds, taking no notice of the existence of adequate legal remedies. Some such cases appear to be Republic Ins. Co. v. O'Donnell Motor Co. (Tex. Civ. App.) 289 S. W. 1064; Florence v. Fikes (Tex. Civ. App.) 48 S.W.(2d) 1047; Mitchell v. Burnett, 57 Tex. Civ. App. 124, 122 S. W. 937; Sullivan v....