City of Dallas v. McElroy

DALLAS OP MoELKOY readily subject, disposed an act and person the same her in the cotton interest particular to reference making subjected be power, without done a contract' which inte'rest, applied to the will separate her entire estate vicissitudes to the Co., power.’ Lbr. Pine v. So. Arnold not to the speculative mаrket, of a this was cotton 1167. 123 S. W: 58 Tex. Civ. appellants contract “(2) from which we deduce rule ‘The and J. it the case W. Whittle. this view of donee or trustee authorities is that a American contract may power immaterial. power conferred execute the necessary to her. If made for not refer which does an instrument him control, manage, itself, properly make power to or but in such to to the execution of the her enable valid, power it must separate dispose of her she attending pear instrument or Wat Wadkins v. be held liable therein. did trustee the donee or circumstances son, hold She 194. was authorized power virtue of fact act under monеy it as secu her cotton and borrow dispose conferred him rity, contract was the effect of the and if this question, intention in pose power it was his cotton could look in accordance repayment and could advances circumstances If from the so conferred. personally Mills it be doubtful liable therefor. instrument еxecuted hold her v; 698; intention to execute App.) whether it John Bank power possessed by grantor, then it will W. 671. 208 S. son v. Scott conveyance not be such act require expressed an above The conclusions power was in fact Hill executed.’ judgment; and it affirmance of Conrad, 345, 791.W. so ordered. may (partner) “(3) agent One partnership); but, (the he for another if making obligation name, an his own incurs the capacity ‘in and not contract his. agent,’ party an the character of power act, not, whom had the but did he et McELROY.* al. v. DALLAS CITY OF though receiving not liable the benefit even (No. 9047.) Hill, Cyc. 484; 483, the 19 N. C. 231. 31 contract. v.Willis Am. Dec. 412. Dallas. of Texas. Civil “(4) may if, agent, and 16, another’s Denied 1923. prinсipal, order to serve one’s time tract in at the same 6, Oct. party, a third one to serve makes a &wkey;>l5 name, doing and revival 1. Abatement —Action one’s own one does pending ‘privity prior dismissed. suit not establish a abated where of contract’ between contracting party, and the been dismissed second a suit had other than Wherе self; second- one’s doctrine of before costs between the ‘undisclosed may principal’ H. parties involving the same not be contract. to such juris- Sons Midwood’s v. Alaska-Portland cause of action Ass’n, 61, diction, be- 28 R. Packers’ I. 67 Atl. of the second 954; election, Ann. Cas. Beckhuson v. Hamblet not he abated. & Gibbs Q. (Eng.) [1900] 2 18.” B. <&wkey;42 nonsuit Dismissal —Dismissal 2. adjudicated in- leaves cross-action seems to us that record as a whole dependently. merely presents a case which the .con- defendant a cross-action charge sent husband took wife the suit, suit, dismissed separate ‍​‌​‌‌​‌‌​​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​‌‌​‌​​‌​​‍property, her farm which was left the cross-action such dismissal it, disposed crops adjudication, impair independent cultivated of rais- and did not for affirmative relief. common thereon for théir and that defendant’s disposing family, &wkey;>!33Interlocutory Injunction 3. — any knowledge authority, crop so made injunction compel issuance wife, with the of his even granted. mit indebtedness for which incurred the officials to issue a build- A refusal brought, plaintiffs ing permit extended because a and unen- suit is void zoning gave power ordinance -them account, forceable to on his wife’s but ac- him no credit adjoining property it, or because withhold solely cepted promise to relied on his- objected, deemed officials indebtedness. such Under unwise, willful and un- was a such construction law or will hold facts nо Mrs. plaintiff’s entitling right, upon invasion of him separate estate, her Whittle her no to a makes cotton to which interest she application. debt so her hus- claim incurred injunction <®=o77(l) Mandatory Injunction band. compel issuance of issue to. addition to this think [7] In appel J. Whittle with made Mandatory issue to necessary dispose him lants was enable when the officials city situation and cotton. been a usual relief is needed marketing cotton, afforded; can hard method ought to be not af- mandamus remedy. fording plaintiff Mrs. said that could not have Whittle <g^oFor KE t -N UMBER all and Indexes for want of November *Writ error dismissed coo 254 SOUTHWESTERN REPORTER disputed On Motion for This fact ‍​‌​‌‌​‌‌​​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​‌‌​‌​​‌​​‍contains no issue of jury. determined a court &wkey;>32—Meaning Action that only' question presented being legal The equity are law and not distinctions recognized between evidence, effect of the uncontroverted explained. and, contention, court sustained from the The that distinc- of the statement interlocutory grant- tions between law and order entered ap- e'quity ing injunсtion, not including mandatory does mean that plied, but that ( permit issue, building ap- order that the are the from rules blended in peal prosecuted upon only two courts, to remove so as First, tions. are: that the court erred law and courts distinctions between of overruling appellants’ plea abatement; chancery proсedure. and differences and, second, grant- that erred &wkey;>32 between manda-i temporary 8. Action ing —Distinctions mandatory injunction. tory strictly injunction and mandamus not so plea predicated up- abatement was adhered where between law distinctions on the suit be- same recognized. and. parties involving the identical is- between Forty-Fоurth sue had first been filed in the recognized, courts are district this suit county, that, the distinctions between confinedto injunction mandator^ subsequently Sixty- filed in and mandamus Eighth county as are commonlaw. courts which adhere court of Dallas district previously filed, identical with the other Appeal Court, Coun- District appellants having already filed their crоss- ty Judge. ; Wilson, Louis therein, action the instant suit abate should pendency previ- because of the of the suit McElroy Action Howard ously Forty-Fourth filed From and others. an inter- jurisdiction had which still retained first locutory temporary injunc- order jurisdiction. building tion and permit order appears appeal. statements defendants originally counsеl that the lee’s the filed in Atty., Colliils, City J. J. and Allen Charl- Foj ty-Fourth district court had been dis- Hugh Grady, Attys., ton and S. Asst. costs missed before the hear- Dallas, appellants. all begun in- the-instant case below. was. Thomas, Frank, Touchstone, Milam & [1, pend 2] common-law rule that appellee. Dallas, for ing suit between constitutes cause abating subsequently filed suit between HAMILTON, This suit J. parties involving the of action in a court of the same cause of administrative to obtain an certain executive jurisdiction by appellee is not in this state. The rule is injunction preventing illegal modified to the extent that.the court re by appellant terference with the .construction quire plaintiff to elect which of the by ap- on-a lot owned prosecute, and, having he-will elected, suits Dallas, mandatorily pellee requiring abandon the other to of court. suit and the costs appellants, building inspector one of the of - plaintiff If the elect, refuses to ap- Dallas, issue then the court Railway dismiss. for, Wilkerson pellee proposed struc- Co. Civ. S. the duties ture. (writ denied); error International, etc., spector building permits upon is to issue Ry. Barton, App. cases, plication regulations proper Tex. and, police under (writ denied). W. 292 of error Dallas, been the issu- prosecution prerequisite held that brought ance of a is a first any building structing within that involving of same prayed temporаry injunction, for a issues including preliminary election as re- inspector prosecute, immediately to he will quiring and that the to filed suit can be abated desired Hoyle, Pullman Co. when reached. Applying petition 115 S. W. 315. was filed the trial When the conversely, logically prayer follows set .case brought orders, given of the suit last and had noticе by" appear why an election stitutes cause prosecute response filed, granted.' and abandon that first should not be relief this accordingly, and, ‍​‌​‌‌​‌‌​​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​‌‌​‌​​‌​​‍appellants appeared it can be notice answer- abated opin pleadings We are therefore is reached. resistance upon proof overruling ion the court did err suit. case heard the which abatement, plea prosecu to have presented upon was an election other cases see same KEY-NUMBER in <§w»For serted and the erection which ranted mit to build tial tion would property protested. where the inary wholly relief at highly developed action in the on lоts owned its was that which lee’s affirmative versy serious the and unlawful invasion of a rarely junction pearing its officers in trict court election to dismiss his demand very ercise again are without it is dismissal is cross-action dependently. and unenforceable state. city of a residential tive that the ed for residential sections of the sue While, ^[3] people impairment Maple officers injury being encroachment applicant’s before final well settled otocers nature, The facts tois this ordinance has been declared void from which constitutes are city, appellee city indefensible. The exercised Dallas enacted a suit filed injury authority law is not аfforded. construction in that refusing avenue in the residential section is now the conduct depreciate is a citizen and of Dallas. He owns vacant lots subsequently adjudicated on merely any justification whatever, remains a mere of two a business district, board erected. For the appellee denying building which the refusing acts interlоcutory application, results from nuisances, of affirmative relief in their desired to rights. rule, was declined on the been asserted residential sections in vicinity. suits. Whatever of this continuing on committed of impaired by city way abandonment this case that full and the value business to be such an order equity of commissioners settled law that store structures of a appeal house in a the courts vicinity In cases “zoning for of cross-action. city responsible Forty-Fourth of in owners of basis plaintiff’s right, the invasion building permit property adjudicated which, mandatory extreme cases store reason one, prelim- of Dallas and of Dallas and by appellants datory injunctions, are not war- owner a nuisances, protection comes. conclusively permits therein as- Again ordinance’.’' OF DALLAS McELROY that other of in contro- plaintiffs’ of adequate cause of asserted testified residen- las of this were in the ex- ground assign nearby willful Authorities object execu were unknown homes owner loca has kind pro- and withоut yet is- of liminary 1387; City have declared with states and injunction posed sertion not civil narrow one. Burns, the concrete freely distinctions exist than in mon Thus it of Dallas and constitutes willful of Burns, mandamus. 1 The ed from. 1 entail not remedy, vasion of forded. so, we the attempting this ling tled law most, tainty to be more one of Certainly the case. the mus in Constitution Each erty huila This case ^[4] such districts. this appellee’s right. practice issuance of the manifestation of law Of expressly law- distinctions between law and High, never succeeding Constitution, long believe City where the distinctions between law practiced Mitchell, supra; said to ease that supra. authority practical since the situation officials of the a mandamus would lie time, distinction have been abolished a of Texas.. delay, Mexicowas administered. of S. W. 717 High its officers fundamental in presents expression not to those which adhere to the com- of recognize that under the authorities and construction of such Dallas Mitchell exercise discussing constitutionally denied their existence. At land. afford object, High since needed and some These decisions conclusively the earliest times in the it seems to to enter on 944; City form yet [officially] After declares that injunctions republic ignored ‍​‌​‌‌​‌‌​​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​‌‌​‌​​‌​​‍law We Injunctions, p. 7. conduct of v. aspects may proceeding by on disregard Repeatedly apрellee hearing. Constitution of Coar distinguished (recently complained supra; Texas. peculiar can Burns, would the Injunctions, unlawful invasion independence the property ought deem it unwise state is finality authority us say of of substance. inhibited in- of the state law 19 A. to be more the decided They This supra. necessarily the courts could not сonstitute Dallas v. in which reported). to be af the in those was not denying manda of Dal- be said from a appeal- of city do not rights. L. them. start- prop- p. man facts were very can pre- set- as- At by R. of REPORTER 254 SOUTHWESTERN for re- misap- motion au- its officers Dallas and results from thority Such view to refuse prehension this' feature prompted of what said reasons governmental

for such course, opinion. We, agency do not court’s clothed case. apocryphal duty protecting announce sovereign power doctrine that the the citizens, rights not fail arfe recognize seeking capriciously ex- courts. We impair, destroy rules ercise of its without warrant prop- jurisprudence, of trary in our one citizen’s law prop- Equity erty another citizen’s we do not state. erroneously satisfy erty, conceived remove the blended our courts so .-judicial prompt propriety, ideas of demands chancery, procedural disapproval. Appellants’ cannot justified. mov- is Although which its tinctions differеntiate them. This of the the well-understood welfare ed city a conviction that distinctions between law is conserved and its inhabitants recognized course, paramount Suits are conviction are not state. to this its judgment pursued necessity to final conformed its conduct be regard nature fan the-plainly well-understood declared аnd proceedings category specific controlling at issue. matter prin- purpose applying whatever pursuit his at ciples Appellee, exercising control the which of law or building, by was questions guaranteed Such involved. the Con- accorded courts Texas arbitrary restate the obstruction An stitution. to the distinc- appellant confined tolerated right merely it conflicts tions an assertion of appellant mandamus, as are courts policy or the an unlawful with adhere to the com- in mon law. which owners. desires of affirmed. rehearing is motion for overruled. Motion On ample opportunity Appellant afforded was opposition pleadings in tо file OIL v. ADAMS ASS’N et al. HARDEE extended a full 8354.) (No. copiously introducing evidence. The of Texas. Galveston. of Civil pleadings- rested its 15, 1923. Denied Oct. complete. elaborate are most resistance The evidence by appellant was ex- adduced companies and business trusts 1. Joint-stock haustive, a nature which defi- was of &wkey;> liability 15(1) under dec- —Stockholders’ nitely the truth of the situation defined. laration of trust precluded certainty entry and with different joint-stoelc company, Stockholders, in a judgment upon heaving. a final through trustees, who, have retained control presented the case on both sides company, are liable for debts standpoint finality, of evi- agents, contracted the association trustees, Appellant accorded and availed notwithstanding dence. declaration every present opportunity agreement attempted all the itself and articles trust exempt bility, stated, individual lia- the stockholders behalf. As above ¿facts liability may though disclosed final inevitable agree оnly who third limited purposes intents result. To there the association not with' hearing. The conclusive- record individually liable. stockholders to hold the -judgment establishes companies and business trusts Joint-stock could not be limiting <&wkey;13Agreements stockholders’ li- constantly mindful of has been This court binding. ability themselves arei as between severity extraordinary nature trust, provision declaration of remedy granted. is one to be accorded exempting agreement, articles distress, extreme cases binding liability, ‍​‌​‌‌​‌‌​​​‌​​‌‌‌‌‌​​​‌‌​‌​‌‌​​‌​​​‌‌​​‌‌​‌​​‌​​‍from themselves, stockholders caution; greatest; it was becoming and one as member granted case is a charged the association sound agreement. sustain knowledge of such pp. 317-319, it. 14 R. C. and authorities companies and business trusts Joint-stock cited. there drilling rig &wkey;>IO oil —Lessor [5, 6] Our declaration be that distinctions lessee association stockholder agreement. articles -bound regarded apparently by appellant’s oil-drilling rig joint- renting ato payment astounding company counsel as assertion. for a cash This stock Key-Numbered. and KB X-NUMBER all

Case Details

Case Name: City of Dallas v. McElroy

Court Name: Court of Appeals of Texas

Date Published: Jun 16, 1923

Citation: 254 S.W. 599

Docket Number: No. 9047.

Court Abbreviation: Tex. App.