Yellow Cab & Baggage Co. v. City of Amarillo

• Decision Date: 25 September 1929
• Docket Number: (No. 3319.)
• Citation: 20 S.W.2d 855
• Parties: YELLOW CAB & BAGGAGE CO. v. CITY OF AMARILLO et al.
• Court: Texas Court of Appeals

Page 855

20 S.W.2d 855

YELLOW CAB & BAGGAGE CO. v. CITY OF AMARILLO et al.

(No. 3319.)

Court of Civil Appeals of Texas. Amarillo.

September 25, 1929.

Appeal from District Court, Potter County; W. E. Gee, Judge.

Suit by the Yellow Cab & Baggage Company against the City of Amarillo and others. From an order denying plaintiff a temporary injunction, it appeals. Appeal dismissed.

Fletcher & Bishop, of Amarillo, for appellant.

Underwood, Johnson, Dooley & Simpson, Vance Huff, and Rip E. Underwood, all of Amarillo, for appellees.

HALL, C. J.

The appellant cab company sued the city of Amarillo, the mayor, the commissioners, and chief of police of said city, seeking an injunction restraining the defendants from arresting plaintiff's cab drivers upon complaints charging said drivers with violating a city ordinance regulating the business of plaintiff and other cab drivers while soliciting passengers at the several railway depots in the city of Amarillo. The prayer of the petition is as follows:

"Wherefore the plaintiffs pray for a writ of injunction against the city of Amarillo, the mayor, the commissioners, and chief of police thereof, that they may be restrained from the arrest of plaintiffs, of their agents, servants, or representatives in the conduct of their said business of soliciting business on the platforms of said railway depots, and that they be restrained from interfering with the conduct thereof in any manner whatsoever, or in any manner they would prevent the plaintiffs in their free exercise of their rights under said contracts, or tending to interfere with said rights, or damaging or injuring the said plaintiffs in the property and contract rights so owned and possessed by them; that the defendants be cited to answer this petition, and that on final hearing the injunction be made perpetual, and that they have judgment for general relief and costs of suit."

The district judge granted a restraining order, effective for five days, and further ordered: "That a hearing be had upon said application for a temporary injunction at said time in the courtroom of the 108th judicial district court of Texas." Upon the hearing, in vacation, the court denied plaintiffs a temporary injunction, and the judgment recites: "That defendants and each of them are hereby released from the temporary restraining order heretofore issued." The appeal is from that order.

We have concluded that the appeal must be dismissed for want of jurisdiction. Under the general equity practice, only such relief will be granted as is specifically prayed for. Boyce, Justice, said in Hoskins et al. v. Cauble (Tex. Civ. App.) 198 S. W. 629, 630. "It seems to be the general rule that an injunction will not be granted unless specifically prayed for, a prayer for general relief not being sufficient, and extending this rule, a number of authorities, including a decision by the Court of Civil Appeals for the Fourth District of this state, hold that a temporary injunction will not be granted on a prayer for a perpetual injunction on final hearing. Boyd v. Dudgeon [Tex. Civ. App.] 192 S. W. 262, and authorities cited; Enc. Pleading and Practice vol. 10, p. 962; Cyc. vol. 22, p. 930; Standard Enc. Proc. vol. 13, p. 86, par. 7."

In Fort Worth Acid Works et al. v. City of Fort Worth (Tex. Civ. App.) 248 S. W. 822, 824, the prayer was practically the same as the prayer in the instant case. Judge Buck said: "It will be noted that there is no special prayer for a temporary restraining order, and, under the authorities cited, the absence of a special prayer for temporary restraint would make the petition insufficient to sustain an order and judgment for a temporary injunction."

The Supreme Court affirmed the judgment of the Court of Civil Appeals in that case. To the same effect is the holding of Judge Levy in Miller v. Miller (Tex. Civ. App.) 294 S. W. 694, and two cases entitled City of Jacksonville v. Devereux (Tex. Civ. App.) 286 S. W. 572, 573. In City Council of City of Fort Worth v. Fort Worth...