*1 weigh justified jury right to had the saying believe the the verdict is so mani- testimony experiences festly unjust own with such their that the case sent should be believability. determining back its for a new trial. event, records the introduction of the Accordingly, judgment trial com- not reversible when there was error court is affirmed. petent subject, to- same evidence on the King. Raymond testimony wit: supra, Sprayers, King al.,
Aerial Inc. v. et
and the cases there cited. appellants’ conten
We now turn to testimony
tion that of the farmers support Mogford was insufficient to S. J. findings The rec jury damages. as to John G. DAVIS et ux., Appellants, Mogford a Master of ord shows holds Mr. M, A where degree Science from Texas & J. S. CAROTHERS et al., Appellees. formerly Professor of he was Associate No. 3625. principal subject as Agronomy; that his production; an instructor was cotton Appeals Court of Civil of Texas. at graduate work he had done additional Waco. Missouri; and that he University April 21, 1960. concerning cotton written text books Finney production. Com He visited Rehearing May 19, Denied inspected crops munity cotton Sep occasions, August four to-wit: 12. He made
tember 5 and and October laboratory calcula boll counts and
various the loss which he established
tions appellee. The farmers each
sustained opinion testimony gave as to
also suffered. Some
the amount loss damages them testified to little little,
jury them some less than a gave dollars. The farmers on
hundred were awarded a
farms combined total $10,000. than We believe the evidence
less support the verdict of the
is sufficient
jury based thereon. We 1,363 pages in
have in this case the state approximately
ment of facts 150 ex carefully every We have read word
hibits. testimony legible examined all the points by appellants raised
exhibits.
require us consider whether the evi preponderates against
dence verdict though
even is some evidence of support
probative King’s force it. In re (King al.), King et
Estate carefully
sidered doing so do not believe we would be *2 Houston, for Sonfield,
Robert L. lants. Houston, appellees. Junell, E.
William TIREY, Justice. action one of bill review. cause tried the aid of without
jury and the Court: (1) plaintiffs’ Granted bill of review and naught aside and held judg- previously January ment rendered on the 55th District Harris Court of County 440481, styled: in Cause No. John Baldry, al.; G. Davis v. et Kathryn (2) He decreed Dav- that Mrs. is, individually independent and as execu- Davis, trix estate of G. de- John ceased, permanently enjoined pro- hibited : (a) constructing, maintaining From or operation or operating permitting any kind of business house or commercial part any lots establishment of either Addition, 1 and 2 block Santa Rosa County, according to Section in Harris plat Page recorded in Volume map County; records of Harris any part (b) using From of either one purposes of said lots for business whatsoever; constructing (c) permitting From or improvement any type of on all remain or any part single of the two lots than family dwelling; and (d) maintaining From or any part of the lots business house establishment; commercial or Davis, The Court decreed that (3) Mrs. individually, independent executrix hearing District Court. That husband, deiiiolish her of the estate evidence, January re- to be cause to be demolished Davis, plaintiff, de- in favor of portion of lot from lot moved *3 property there in contro- creeing now station gasoline service the entire 28, 1955, versy On with unrestricted. together property, on located June appurte- in appeal the cause on was filed here driveways, all other and concrete 80th Coun- District Court of Harris thereto; nances Judicial ty by appellees, plaintiffs and in this suit individually, and Davis, Mrs. (4) That proper- that they set out were owners of executrix, permanent- capacity be in her ty Addition, alleged in Rosa and Santa by the Court ly enjoined and ordered plaintiff among things and use further from cease desist prior conspired defendants in suit or com- business for of said lots either keep pendency prior a secret suit purposes whatever. mercial from within the property the other owners in her ca- Davis, individually, and Mrs. property addition and that none of the executrix, excepted to the duly pacity as owners and residents such suit knew of appeal to perfected her decree entered or judgment taken therein until more Court, is here the Houston days than 30 after rendition of such Supreme Court. on transfer order of judgment. plaintiffs, in The the suit filed appel- on what is assailed 28, 1955, represent- sued as a class June points. Points designate as lants sixteen ing property all the the ad- owners within 2 the effect that substantially are dition who desired to restrictions retain the appellees’ overruling erred in the Court 6, 1955, July full force and effect. On summary judgment for motion appellants here filed motion for sum- plaintiffs petition failed to in their mary judgment. Court, hearing join named all the defendants motion, argument this on overruled on judg- appellees obtained in the suit wherein August plaintiffs (appellees 1955. The ment 55th District here), original petition filed their June failure of such lants reason contend 28th, 13, specifically alleged: in paragraph appellees’ collateral at- constituted suit plan “Defendants to demolish the judgment. on tack residences two located on the necessary. comprehensive statement is A defendants, owned and to Davis, August G. filed On John large gasoline struct thereon service District Court of class suit in the 133rd plan Pursuant to defend- station. County, purpose of remov- Harris negotiated are negotiating ants have or use of ing limiting certain restrictions Refining Company & with Humble Oil lots 1 in block their large company some other for a oil of Harris of Santa Rosa Addition Coun- company to such oil of the service lease ty, asking the to decree that he station after its construction has been permitted to use such for busi- be completed by Defendants. The con- purposes. August and commercial On ness struction of service station 27th, plaintiff, Davis, filed his first amend- properties by defendants will be owned 14, 1954, original petition. On ed October direct violation restrictions summary judg- Davis a motion for filed said applicable to ment, and hearing, the cause was proceed plan will defendants motion, after hearing argument will construct said service station suggested the Court that the suit should enjoined doing are from unless so heard on its further merits no ac- by this Court.” Thereafter, tion was taken on the motion. plaintiffs May the cause was tried on the merits before On pendens, Boyd lis Ewing prop- of the 55th notice of it was the Honorable large County plaintiffs Harris that each of the will suffer Clerk of erly indexed damages G. if the are removed County. August On John Davis, addition, properties from will wife, Kathryn execut- and their Davis and T. depreciate Company a such restrictions ed to the Texas value if and delivered feet off annulled. covering lease all lot 1 and Addition. Rosa of lot block Santa Testimony to the effect tendered third amend- trial Plaintiffs went to at the time the their lease Davises executed this dis- original petition. Pertinent ed only im- to the Texas things they alleged among other cussion provements single *4 violated that and his wife had Davis family a building garage. residence upon imposed this restrictions theretofore request findings There of fact was no to fur- making threats addition and were were conclusions of law and none restrictions; that
ther violate such filed. In recital: judgment find this proceeded to this suit was filed the Davises opinion that the “The Court is of the by carry their threats and violations out plaintiffs law and the facts are with the building which demolishing the residence and cross-defendants and said addi- was 1 block situated lot defendants.” tion, they to be constructed and that caused portion of the lot such and a pertinent decree, And then follows the station, and- adjoining gasoline service parts previously stated. we have completion they had main- that its points our We overrule 1 and operated tained it as a service station Supreme Royalty Rogers in Pool- Court such; ceased resid- it as that the Davises ing Company, 157 Tex. located on lot ing in the residence expressly held where the trial court over- property, and that adjoining lot 1 of their summary judgment rules motion for of- operating real estate sales appeal is no from such refusal and the Freeway Real- name fice under the of Gulf cause remains on the docket for such fur- Company violation ty such was a that proceedings may appropriate. ther as restrictions; Davises Assuming, deciding, ques- without planned de- the restrictions to violate nonjoinder necessary tion of and indis- building located on molishing the residence pensable parties properly raised thereon a commercial office lot and erect summary judgment, motion since plaintiffs building; that these are not bound Trial refused motion and judgment by the former rendered error, appealable, ruling such was not nullifying the restrictions because any, overruling in of the Trial Court defendant, Baldry and other four by subsequent join- motion cured prior named defendants in the suit were parties der said defendants in this as in same not under the circumstances 39(b), See Rules Tex.Rules cause. plaintiffs suit or with class this of Civil Procedure. residing in sec- owners substantially Points 4 and 5 are who to maintain such tion 1 desired restric- force; Company, being the Texas plaintiffs that each effect tions possession of the service interested in the matter this exclusive station are properties plain- under lease suit because the which the erected tract, necessary originally by it was and indis- tiffs owned were sold the sub- pensable party; owing to general plan under a the fact that dividers to make of highly restricted the National Bank of Commerce of Hous- the addition residential acquired damage had an interest in a lien greatly and that it would ton creat- district plaintiffs it was properties cancel the also a neces- to ed on indispensable party applicable sary litiga- to to the Santa Rosa restrictions they apply tion, foregoing, as reason of the Addition to section and that as parties abate- defendants plea in to said suit appellants’ second amended sustained, name person parties no other said ment should been have suit, We he because he knew that dismissed. cause should have been appel- named as defendants either desired or were previously pointed have pendens willing to to said lees notice of lis here void; lis null Davis such declared and that May suit on arrangements made with each of pendens leasing preceded notice filing defendants of said suit Texas Com- property by the Davises to the op- the effect pany, Bank that defendants would well as the date National pose lien; therefore, sought his suit to ob- acquired for the relief its Commerce therein, alleged tain that Davis and further rights of the Texas and claims persons in- and other named Bank of National Commerce petition conspiracy subsequent pendens were in collusion and the lis ferior and entered, have the and that 6642 and Article notice. See Boyd, 66 defendants named in the suit Davis did See also Wortham V.A.T.S. present 29,p. not any defense whatever but 401,1 109; 34 S.W. Am.Jur. *5 23, p. fact and that 384; Pendens”, judgment, consented to the “Lis Sec. 28 Tex.Jur. naming “Covenants,” deliberately Davis refrained from 14 Am.Jur. suit, person who any as a defendant in that 3, 4 and points Accordingly 345. maintaining was interested in the restric- overruled. applicable in tions to said Appellants’ point is effect that making to the suit to defense remove plain- permitting the Trial erred in petition al- such further restrictions. tiffs, evidence objection, to introduce over leged in that Davis and defendants named petition alleged in the contradicting facts brought deliberately the Davis con- suit to restric- plaintiff in suit as the property such facts from said own- cealed changed conditions tion violations and entry days more after the ers until than addition which within and without said judgment in the filed Davis. the suit upon in such suit allegations were before the Court Surely, foregoing the based its enough 55th District Court specific enough which the entitle and broad to judgment aside the restrictions setting appellees here to tender such evidence the judgment such restrictions rendering allega- foregoing the they as had to sustain prop- to and unenforceable the testimony were void tendered is contained tions. controversy. erty in We overrule this many exhibits. pages, in and there are briefly we shall dispute which tention for reasons the This is without record Plaintiffs, amended acquired in their third state. the in suit sub- Davises they to petition on which went the original placed ject the restrictions to trial, alleged having specifically subdividers, that said restric- the placed upon in accepted the tions were covenants deed plan general they question in to secure order with the land were neces- running thereby. As we sarily understand dedication of bound set forth scheme they appellants’ brief contend purpose making property, and for competent evidence to sustain the no and described is this known lots in suit cause; Judge in Trial this pur- findings of the lots and for residential that the evidence in- they not contend limiting do said pose; said support judgment only cove- sufficient use was a residential for land judgment nor the land and still Trial ran with which nant against weight addition; is so Trial Court property within plies to the evidence as to preponderance of original he filed his plaintiff, when unjust. King’s Estate, Re restriction, manifestly deliberately to remove suit As above maliciously 150 Tex. undertook to name said appellees allegations and at the time that here filed indicated, it is our view that aside, they judgment their to set plaintiffs’ pleadings which went suit the Davis on fact, question had erected there- trial tendered issues buildings only purposes. is sufficient for think evidence residential adduced implied appellees, Trial The findings of the their to set aside the sustain the injunctive judgment, sought that there was Davis pointed have relief Court. We only purpose request and conclu- findings maintaining no fact law, quo buildings did specifically prop- status sions but the Court erty. words, are with purpose the facts In other it was the find: “that law and cross-defendants, preserve of this plaintiffs second suit to the restric- defendants,” proceeded previously tions run- created covenants ning property. enter decree out. We think the con- which we troversy must as- entered we remained the same from the time judgment view of the impliedly It found suit was filed until final judgment. sume that the Court appellees true at the time each issues in favor the controverted only view suit plaintiffs. the further to set aside that We are of ample parties sus- Davises were made It tendered is defendant. evidence implied judgment. likewise true that in the amendments findings tain the subsequently filed But that since The contend brought in the other who were de- possession was in fendants suit. The record actively operating the station and shows that none of the lienholders or the *6 same, since the National Bank of Com- and Company Texas dealt with these added de- acquired had become merce and sub- had fendants, and join failure to such defend- rogated outstanding to certain valid liens suit, ants in the Davis could and did not on re- and since said liens not the inure to benefit the of Texas Com- outstanding at the time that ferred to pany or the National Bank of Commerce. the filed judgment was entered suit parties Davises were the dealt by Davis, and at time that the the lessee, by lienholders, by with the and the the filed this suit set aside ob- parties and the all Davises were at times Davis, by Davises, tained and since the on very to this suit from the beginning, and December executed and delivered parties we think that the and Davises the E. Whitmore their of trust deed by dealing the with Davises were bound John on to secure the National pendens; the notice lis nor of do we think payment a Bank of Commerce in the of appellees’ amended third date note even with such instrument in of petition a introduced new cause of action. principal $65,000 payable sum the of injunction The action was still suit for a an equities installments, monthly enjoin the violation of residential re- Company, and the interest of the only by It was reason strictions. acquired by having persons bank virtue of these Davises dealing acts of the and prior Company made the Texas liens and in tearing with them down the residential indispensable necessary par- and said bank one of buildings the lots and construct- Appel- the action here before us. filling ties to ing station thereon that by on the rely doctrine announced lants change whatever was made the details Supreme sought. Court in Wortham v. Boyd, our It is obvious of the relief that in 109, supra. effectively 66 Tex. S.W. We are enforce order to restrictions violation, accord with prevent not in views for and manda- briefly we shall hereinafter tory requiring tearing reasons down all, necessary. First evidence is station was state. without of the service This dispute change at the time the not nature filed did judgment thereon, obtained we have with and action. What reference their suit equal necessary indispensable applies party. was a and to the Texas fact, appellees’ Na- the effect of the suit was question whether force to necessary preserve outstanding liens is Bank of tional Commerce property. It also buildings unless is party to this suit indispensable dispute sub- without assignment the mechanic’s and by alleged equitable lien materialman’s contract executed Bank Commerce National rogation, the par- connection with the construction indispensable necessary became stated, bank service after ty. previously long station entered into we have As assign- pendens by filing the lis notice. it Cer- acquired such interest tainly subsequent assignment of that December trust dated ment and deed of contract lien Bank many to the Pasadena months This was not think could have made contractor We or pendens lis notice. filing indispensable necessary lien Pasadena Bank of a it that the holder is well settled parties to this suit. It clear pendency seems to us during the accruing acquired by pendens. rights of lis National is to the doctrine Pendens”, equitable Bank of by assign- Commerce Tex.Jur., “Lis subrogation ment and cited. This could not and not 337,supra, cases there did page injunc- necessary indispensa- make bank a a suit enforce party ble to this suit. necessarily to estab- The bank could do tion, an action more step no than shoes or to into the right interest real estate lish an rights whose had been estate. It real charge enforce subrogated. acquired bank that unless the follows superior theory equitable right under the This court is not unmindful of the covered assignment subrogation not loss will sustained notice, it was and is not pendens the lis lants tearing down of necessary indispensable party to this mandatory injunction station when the that it is previously We have stated suit. put effect, given into and this has much us dispute suit was that when this without concern, as we the record view we are lot block was *7 June power give any without to the occupied family build- by single residence It that relief. follows from what we have similarly 2 garage, and lot was ing and a appellant’s 11, points inclusive, 1 to Testimony to improved. was-tendered the each overruled. addition to residing in the Davises were effect that Dixon, authorities see also Sanders v. 114 2, the house lot on lot house 229, 577; Mo.App. 89 S.W. Forster v. unoccupied. absence of 1 There an was Raznik, 1907, 692, 46 P. Wash. 91 any the hold- that of to effect evidence Appellants’ points 12, complain and 15 13 prior to time of the existing liens ers of (1) of the action of Court in permitting violating pendens lis notice filing of the witness, Bracewell, testify that to residential threatening or to violate the covering property deeds Section 1 in of Up basis suit. made the this of made subject Santa Rosa Addition were to pendens filing of the lis
to the time of the conditions; in (2) the restrictions and any im- nothing been done to notice had testify I. Thomason that permitting C. to provements on either of lots involved signed by all the deeds him conveying the the lien- impair security any of of to Addition, 1, Rosa in Section Santa sought relief that the It obvious holders. provisions making conveyances contained point not have up could in case to that subject lienholder, recorded restrictions. Brace- security but affected the of testified to effect contrary protect well law sought practiced since 1944 in yer Houston cir- rights. Under these such lienholders’ firm; that such his father’s firm existing lien no of cumstances holder thirty years represented the Parkers for pendens lis filing notice of 638 “ * * * they represented
continuously; also the best evidence rule represented in Heiner, apply him the does not writings R. C. collateral years 1945; through being tried; that Heiner to the issue then of 1940 Banner, Arkansas, place where now resides in the execution or existence of Houston three writing where he from distinct moved from its contents years ago; August, four that since does not form the foundation of the were action, all deeds from the Parkers to Heiner although material the contro- Bracewell; prepared all versy, production Fentress writing required, conveying such deeds Section its execution and Parkers may Addition from the proved parol.” of Santa Rosa existence con prepared him and to Heiner were See cases cited. stipulations conveyances tained Porter, Tex.Civ.App., Larrabee v. to recorded restrictions. pt. S.W. page McCormick that he Thomason testified to the effect Ray, & p. 1937Ed. cases employedby years; for 20 had been Parkers cited under Note 56. Bains v. See also actually signed power that the Parkers Parker, pt. evidence; attorney introduced into 12; 32 794,p. 725; Evidence 17 T. § C.J.S. date after October p. 490, Sec. 190. Under foregoing J. power attorney, Thom- execution of authorities we think the testimony Brace- power ason exe"uted deeds under well and Thomason was admissible. More attorney, conveying various lots Section over, we think that the evidence with refer the Santa Rosa Addition to R. C. ence to the dedication map, and the to Heiner; that Thomason went to the Coun gether with the restrictions contained in ty Clerk’s Officeand read record of instruments, the written the deeds to the Page deed recorded Volume 1311 at Davises and testimony of various wit County, Records of Harris Deed nesses to the effect that the property in Texas, and Thomason testified that he Section 1 was actually developed by the signed agent attorney deed residences, and that bought fact for Parkers delivered it to R. C. property in Section of Santa Rosa Addi Heiner; of that deed was tion in reliance on the existence of resi prepared Bracewell, office S. J. restrictions, dential was sufficient evidence attorney; that he executed other deeds con adoption plan of a general or scheme property in 1 of
veying
Section
Santa Rosa
development
Heiner,
Addition
and that all
Section 1 as a restricted residential subdi
conveying
deeds he executed
vision. See Abernathy Adoue,
Tex.Civ.
*8
in Section
of Santa Rose Addition to
App.,
(J39 tion, damage they plaintiffs in this lawsuit. be nor are that would sustained plaintiff addition; only proper parties particular residents in this some in Section of the testifying are the owners witnesses that there would only are the be no damage; and such owners others to various testifying actual that plaintiff. highest damage It is true amounts but the testified pellants by any Hood brought Simmons, damage prop- witness Shin party erty this case as third defendants next to the into Davis and such appellants alleged cross-action witness estimated such damage to be wrongful $500; prosecution and malicious sum some witnesses testified Simmons, civil case. The other lots damaged fact Shin in the addition been and Hood were in such to the permitted cross-defendants extent of This Court $500. disqualify cross-action did not them under argument Rehearing, oral on Motion for Statute, the Dead Man’s Vernon’s Ann.Civ. during argument one member Ragsdale, Ragsdale St. art. 3716. See appellees the Court asked counsel for what 291, points 8 to he would consider the relative to be losses 10. See 14-A Page also At- appellants appellees if he should Tex.Jur. Dodds, Tex.Civ.App., kins v. 121 S.W.2d attempt equities to balance between the 1010. From what we have said it follows parties and his answer was to the effect appellants we are of the view that filling that if the station was torn down un- point been unable to reversible der the terms mandatory injunction error, appellants’ each contentions is loss on the would Accordingly, overruled. $125,000, neighborhood affirmed. was his estimate of the loss without the ex- pense testimony tearing it down. No Rehearing
On Motion for was tendered tearing as to the cost of down original opinion, In our we stated: “This station, but counsel for court is not unmindful of the appellants loss that each were of the view will be sustained expense incurred would be a substantial tearing down of the station when the inquiry sum. A member of the Court made mandatory injunction put appellees’ into effect. counsel to what the Trial ” * * * question Tliis gives said, still anything, Court in this cause Court much concern given balancing equities and we have reference to the much more Appel- consideration to it on the time at he entered the order coun- lants’ Motion Rehearing. Judge As we un- sel that the Trial stated said in effect evidence, appellants’ derstand the he did not know what the situation fronts on the northeast corner at particular the inter- with reference would be section of years Reveille Road with Park from the Place matter two date City Houston; Road directly judgment, May was in Road, across Park Place and at grant the north- as of that date he would the bill of west corner of the granting intersection review and enter an order constructed a large filling mandatory and direct at the station}, *9 there large building. is another lants to down the southwest corner tear As we station; record, at the southeast corner understand the when this filling there cause was a grocery constructed store a the 55th District Harris and before now Judicial store, County January, there is suit the factual liquor pending and situa- at was sub- to statement of counsel in oral tion street intersection (according now, stantially except reference same as grocery fact argument) store, liquor and this has two residences on and that located store awaiting standing. still outcome their were The been tried and not hearing District testi- Court’s action in cause. Much 55th mony, holding the order that the testimony was tendered with reference to they not restrictions. would have had to execute was under a bond and equal Therefore, did not want obligate give have two Courts of themselves oppo- prevent dignity bond to jurisdiction maintaining the construction of the and building they this factual site with reference to did want views not expense state further litigation think we should situation. We that the bond in on appellees original they the event that when the prevail. filed should not (de- bill to set aside Court’s We think Rule in Texas is that re- claring free property was from party injunctive seeking relief “must not a tem- they ask for strictions) that did not him, only injustice that has show been done porary that injunction. record shows The must, addition, he that has show appellees amended second filed their proper wanting diligence, not been that July on petition original clearly he must disclose that has injunction temporary for a they not ask did negligence part.” been no his on Mor Appellees trial went to petition. al., Edwards, 205, point ris v. et petition amended their third page and authorities there cited. pleading in that November Nance, Simon v. Tex.Civ.App., 142 S.W. filling- that a time up for the first they set h., 661, n. w. we find statement prop- been constructed had station Rule: just state when erty, not but did They did constructed. station had been undoubtedly “It that be- law they been had pleading in the last party mandatory fore is entitled to a $20,000, because sum of damaged in the appear it must that he would the restrictions appellants had violated injury suffer material and substantial station, * * * in the construction if the writ were refused. time that first appellees for the asked Where the damage very is so small record does not demolished. station be right unimportant so make the as to exactly when the station show one, case a equity trivial will dismiss agree counsel indicate and structed but point the bill.” See 3 at page 663. subsequent filing that was See Dallas Hunting & Fishing Club v. Dal 1,May Notice, Lis Pendens County las D’Arc Bois Island Levee Dis that the lease 1956, and the record shows trict, Tex.Civ.App., 607, point 235 S.W. 2 at Company Texas Davises from the page 612, h.; n. Angeles w. Los Heights day August, the 21st was executed on Independent Chestnut, School Dist. v. Tex. building was constructed Civ.App., Transport S.W. Com early The rec- either in late pany of Texas v. Transports, Robertson time during ord shows Inc., 152 Tex. 549, points appel- constructed that building was 1 to 4. construction but lees aware such no effort to have the they made allegation We do find temporary restraining grant a order. petition they the effect that lees’ had used several months record shows some prevent the diligence to construction of the passed beginning from the construc- filling station the Davises. Counsel for completed it was tion of the until appellant argument stated oral that when occupied by appellees filed their case sea- sonably jury paid the construction counsel called during jury for pellees temporary fee, placed not ask the Court for the case jury did docket, the construction. Counsel and at time the writ halt crowded condi- argument their brief oral jury tion docket at Houston was *10 ordinarily jury the reason did not ask the stated case could not be temporary injunction years for a Appellees'’ due tried under or more. two granted .they if it argument the fact that had been stated in oral to counsel the
641 Co., Mfg. jury stand.” See Durkin v. Lovknit case they placed the reason 5, 3 to Cir., 667, points 665, 5 F.2d at that 208 fact that the was due to docket v. Humphrey Hutcheson, C. try the case would thought he time J. 424, 31 Humphrey, Ala. 48 So.2d 254 Boyd District (55th Ewing Judge before Sec. 24-A 315. see the A.L.R.2d Also unwilling to submit he was Court) and Tex.Jur. 52; 58; “Injunctions,” Sec. previ- 28 the Boyd in Judge view matter to Am.Jur. 53; “Injunctions,” in 1955. judgment he ous C.J Am.Jur. In Injunctions p. Boyd S. Judge questions § Would not arise: C.J.S. junctions 87, 590; Injunction, p. Joyce on Judge of position § have been in better Grant, 25; Brown, Tex. Vol. Sec. et al. v. wheth- District Court to the 55th determine Civ.App., h.; w. General n. deceived or er or not the Court had been Tire Company, & et al. v. Rubber hold imposed upon by fraud to induced Tex.Civ.App., Company, Pacific Coal & Oil free from restric- the ref.; Smiley, al. v. et S.W.2d err. ade- tions? Could the 80th District Court City Tex.Civ.App., 37 Graham, al., et quately fairly or not determine whether dis.; Rice & Adams err. the deceived? 55th District been Court had Corporation Lathrop, 278 U.S. questions We think the answer themselves. S.Ct. L.Ed. brings us to the doctrine of
That equities. ques That the balancing of the partic This shows record for two rea concern gives tion us the way from only short ular location all, in the is a conflict : sons First of particular freeway that this super new the 80th by 55th decrees entered a residential developing from fast area is equal Courts, these Courts District or semi-commercial to a commercial section in the equal jurisdiction same dignity and development in area; commercial community. say Needless to these decrees it ren extensive this area has been so conflict, in irreconcilable and we are benefit to little ders the restrictions of situation, face with a to face most unusual Rosa Addition. residents in the Santa mandatory injunction al because if the fact, particular area in that the situation a loss lowed stand Davises will suffer filling down of tearing such that by appellees to the estimated counsel station cannot have substantial benefit approximately $125,000,plus amount of Rosa Addition residents of Santa expense carrying mandate area, development hand, injunction, while on the other already built on filling stations owners will suffer addition corners; northwest the southwest compared the loss sus minor losses any at filling these stations are not under According Davises. tained tack; so, we have here a situation where to be suffered greatest loss record foregoing circumstances can facts and would be any property in addition owner subtantially by tearing not be altered sta neighborhood of $500 down of the station built the Davises. us It seems is allowed to stand. tion to be sus the losses weighing Under situation this Court foregoing bene tained has come to the conclusion that en- by the must be fits be received forcement of this so would be equity is a controlling here. “A court of inequitable, oppressive, harsh uncon- function court of conscience. The ought give scionable that our consideration, is, upon equitable chancellor proval all thereto under the facts and sur- straw, from the the wheat to winnow rounding circumstances here before us. appeal aside decree will not his * * * Supreme Court of United States unless, appear it is made to Winnipiseogee Lake Cotton Parker equitable inequitable is not to let it *11 545, tory injunction granted Company, & 2 Black 17 L.Ed. should not be Woolen 333, against v. statement: enforced In Elmendorf we find this them. Taylor, 166, 152, 165, 6 L. 162, 10 Wheat. equity “A will interfere Court of the Rule we find this statement of Ed. wrongful injury by when the act City (See Baldwin Nat. Bank of v. Chase irrepara- party will be adverse 918, quota- York, D.C., F.Supp. of New ble, health, as where the loss of collated): page 920, tion at cases there trade, loss the destruction of of means the nun subsistence or of of require, that all equity “Courts of (Emphasis must ensue." parties shall concerned in interest n added.) them, the matter brought be before controversy finally may be settled. foregoing realize We equitable however, rule, This is framed very as we understand general, Rule hut is by itself, its court is undisputed here it is factual situation not, descrip- discretion. It is like the appellants’ that the destruction of certain parties, rule, tion of inflexible an loss, a tremendous entail would failure to observe which turns have little would party court, out has no of it property or value for value for residential jurisdiction cause; over his but property; anything than business by itself, introduced for the court accruing that the benefits to the residents purposes susceptible justice, compared the addition would be trivial modification, promotion equity A losses. Court of purposes.” those require doing will not useless thing; powers it nor will lend its to ac This consideration, after much complish grant purpose, useless nor will of the view mandatory that the any a decree which does not real confer the Court in this cause is too any benefit or effect real relief. See harsh, and would injury work too an Equity 16, p. 336, and cases § oppression C.J.S. appellants, general cited. There Rule is another benefits to be received equality equity, and that it is effect that pellees by destruction of this rights burdens well applicable to as proportion of all loss that would equity. equality of burden is See and that be appellants. sustained In Texas Equity p. 517, and cases § our C.J.S. courts equitable prin- adhere to the City Also see Malott v. there cited. ciples application that “In equitable Brownsville, Tex.Com.App., 298 S.W. empha- principles, the letter should be not Equity, pt. Tex.Dig., 15A ®=354. 2-3. substance of things, over the sized spirit letter ‘The killeth but the
sometimes Employers’ Since this cause must be Texas reversed life’ See Ass’n giveth ”. remanded, Cashion, Tex.Civ.App., and since the Texas Com pany possession the lease and is in owns ref. It is true that writ we have station, discussing and since the National case found Texas comparable Bank of Commerce of large Houston has a situation to the one be- factual us, indebtedness secured are now of fore the view that lien, this application equitable Court is principles a valid view equity good require requires conscience situation grant factual us to Appellants’ Rehearing National Motion for re- Commerce made Bank of de and remand this verse order to cause, in satisfy order justice. Magee fendant that each the demands of may present claims, such they have, Young, 145 Tex. why appellees’ application point for manda- *12 grant- Motion is
Accordingly, Appellants’ remand- this cause is reversed
ed and
ed. WILSON, in re- (concurring Justice
sult) . most result, hut I concur opin- supporting it reasoning appeal to certain I am not
ion. response the same
science would evoke in referred liquor store chancery involved, example, was opinion, I of a interests widow. than the
rather concerning misgivings
have serious application of
precedential effect principles referred equitable
some of the prefer I not to bound.
to, as which AMERINE, Appellant,
Louise Appellees. al., R. HUNTER et
Tom
No. 10755. Civil Appeals Texas.
Austin.
April 20, 1960. May 11,
Rehearing Denied