101 S.W.2d 405 | Tex. App. | 1937
Lead Opinion
This suit was filed in the district court of Freestone county by E. F. Conklin of Harris county against K. C. Barkley, criminal district attorney of Flarris county, and the sheriff, eight constables, and nine justices of the peace of said county, the chief of police of the city of Houston, and J. R. Sessions, sheriff of Freestone county, for a temporary injunction restraining said of
The material part of appellee’s petition is as follows:
“That plaintiff owns and caused to be opei'ated prior to the filing of this petition, a number of amusement boards or games, commonly calléd and known as marble tables machines or pin games in Freestone County, Texas, and Harris County, Texas; that said boards or games were operated under the supervision of plaintiff in various mercantile establishments in said counties, a percentage of the profits, if any, being 'granted the owner of the establishment in jvhich said board or game was being operated, the balance of the profit being retained by the owner; that the said boards or games were used and operated for amusement only and there is plainly stated thereon that same were not to be used for gambling in any manner and that plaintiff nor anyone authorized to act for them in the management of said boards or games in their operation have never authorized betting or any other forms of gambling to be conducted, but have expressly forbidden the use of same in that manner. That said boards or games are operated, in substance, in the following manner, to-wit: one desiring to play said board or game deposits therein a five cent piece and receives for playing in most types of said games ten balls and in some types of same but one ball; that said balls or marbles are propelled across and around said board through the operation of a stationary spring which same is controlled by a trigger or plunger; that in the surface of said board are numerous apertures, near each of which is placed a number signifying the number of points the player receives for placing said ball or marble therein; that upon the conclusion of the game the points or score attained by the player are totalled; that at all times during the operation of said game the machine is at the exclusive control of the player thereof and the outcome of same depends solely upon the player’s skill; if the player of said game or board is skilled in operating and playing same a prize or reward is given which depending upon the skill exercised in the playing thereof, ranges from $.05 to $1.50, in most instances paid in cash and in some instances in corresponding values in merchandise at the establishment, in which said board or game be operated and played. * * * That defendants have notified plaintiff and owners of the various establishments in which said machines were placed for operation that they would be arrested and prosecuted should they continue to allow said boards or games to be played in said establishments, and that said boards, games or machines would be seized by defendants and destroyed * *
It is readily apparent that the petition in its description of the marble machines referred to is too indefinite to justify the relief prayed for. It describes the machines sought to be protected as “a number of amusement boards or games commonly called and known as marble table machines or pin games in Freestone County, Texas, and in Harris County, Texas, * * * operated under the supervision of plaintiff in various mercantile establishments in said counties.” It does not give the number of such machines, the trade-name under which they are manufactured and sold, nor otherwise described them so that they could be identified, nor does it give the name of any of the mercantile establishments in which a single one of them could be found. It is apparent that any officer who, in good faith, desired to obey the writ of injunction issued by the court upon such a petition, would have great difficulty in recognizing either of said machines or the mercantile establishment in which it might be located so as to extend the protection and benefits of the writ as contemplated by the law. It is a well-established rule that in passing upon the sufficiency of a petition for injunction, especially where the injunction is granted at an ex parte hearing, the petition is construed most strongly against the pleader, and in order to be sufficient it must allege all and negative all that is necessary to establish the right to the injunction. 24 Tex. Jur. 222; Gillis v. Rosenheimer, 64 Tex. 243, 246; Plough v. Moore (Tex.Civ.App.) 56 S.W.(2d) 681, par. 6, and authorities there cited. The petition in this case wholly failed to describe the marble machines sought to be protected with sufficient particularity to enable the court to issue the writ of injunction as prayed for, and consequently is insufficient to support the judgment of the trial court. Flood v. Scott (Tex.Civ.App.) 67 S.W.(2d) 909, par. 3.
For the foregoing reasons, we hold that the trial court was without authority to grant the injunction appealed from.
It is therefore ordered that the judgment of the trial court be, and the same is, reversed, and the injunction dissolved.
Rehearing
On Motion for Rehearing.
In the motion for rehearing, appel-lee insists that the order appealed from is a temporary restraining order as distinguished from a temporary injunction and that no appeal will lie from the granting of a temporary restraining order. The petition prayed that “a temporary restraining order be granted restraining the defendants * * * from molesting and interfering with the plaintiff * * * and from arresting or prosecuting said plaintiff * * * until the further order of this court, and for such other and further relief, both in law and in equity, to which plaintiff is entitled, both general and special.” The judge’s fiat recited: “It is ordered that the Clerk of the District Court of Freestone County, Texas, issue a temporary restraining order in all things as prayed in the within petition” upon the execution of a proper bond. Neither the petition for the injunction nor the judge’s fiat thereon made any provision for a hearing on the order or fixed any date for the termination of the so-called restraining order. Therefore, notwithstanding the fact that it was called a temporary restraining order, it was in fact a temporary injunction from which an appeal was permissible. Houston Ice & Brewing Co. v. Clint (Tex.Civ.App.) 159 S.W. 409 (writ refused [Tex.Sup.] 169 S.W. 411); Scarborough v. Connell (Tex.Civ.App.) 84 S.W.(2d) 734, par. 1; Bargaimes v. Coke (Tex.Civ.App.) 86 S.W.(2d) 653, par. 1; Dyer v. Dyer (Tex.Civ.App.) 87 S.W.(2d) 489, par. 3; Terrell v. Alpha Petroleum Co. (Tex.Civ.App.) 54 S.W.(2d) 821, par. 1, affirmed 122 Tex. 257, 59 S.W.(2d) 364, par. 1, 372.
But we think the result would be the same and that an appeal would lie even through the order attempted to be appealed from should be classed as a temporary restraining order. Revised Statutes, art. 4662, provides that any party to a civil suit, wherein a temporary injunction may be granted or refused or when motion to dissolve has been granted or overruled, may appeal from such order or judgment. While
We recognize that there are some decisions by Courts of Civil Appeals in this state which hold that no appeal will lie from the order of the court granting a temporary restraining order; but we have found no decision by the Supreme Court to that effect, and we can find no justification in the statute for such holding. In the following cases it-was held or intimated that no-appeal would lie from an order granting or refusing a temporary restraining order, but a careful examination of these authorities will disclose that the temporary restraining order attempted to be appealed from had expired of its own limitations prior to-the time when the hearing was had on appeal, and consequently the question had become moot. It was therefore unnecessary for the court to hold that an appeal would' not lie from such an order. City of Jacksonville v. Devereux (Tex.Civ.App.) 286 S.W. 572; Jacksonville Independent School Dist. v. Devereux (Tex.Civ.App.) 286 S.W. 573; Hudson v. Sunshine Oil Corp. (Tex. Civ.App.) 245 S.W. 765; Wood v. Bird (Tex.Civ.App.) 20 S.W.(2d) 221; Johnson v. Sunset Stores (Tex.Civ.App.) 27 S.W.(2d) 644; Citizens’ National Bank v. Thomas (Tex.Civ.App.) 88 S.W.(2d) 1090; Lokey v. Elliott (Tex.Civ.App.) 88 S.W.(2d) 126; Nall v. Malley (Tex.Civ.App.) 55 S.W.(2d) 593; Berry v. State (Tex.Civ.App.) 79 S.W.(2d) 891.
The motion for rehearing is overruled.