195 S.W.2d 434 | Tex. App. | 1946
The appeal is from a denial of temporary injunction upon hearing. Appellant had sought such relief to avoid eviction by Constable Luther, as authorized by a writ of restitution; such process being ancillary to appellee Bryan's judgment of possession of date August 17, 1945, in forcible entry and detainer, cause No. 10,941, Justice Court, Precinct 1, Dallas County. Subject matter of suit involves premises described as 114 South Henderson Street. A temporary restraining order first issued effective until the hearing of October 29, 1945, when the adverse ruling was made.
The August judgment of possession seems to have been by agreement, in which connection Bryan, house owner, promised to withhold issuance of writ of restitution for 30 days, or until about September 14, with Gray continuing to pay the $22.50 monthly rental. On September 20, as Gray alleged and testified, a new agreement was entered into whereby he was to remain in the house indefinitely upon said monthly basis, paying rent to October 14; and that in violation of the last arrangement, Bryan proceeded to seek issuance of the writ of restitution on October 15. Bryan did not deny acceptance of rent for aforesaid use of the property after judgment; testifying that Gray had desired to retain the Henderson Street house until the completion of one the latter was building; that such request was refused, but was the reason for the 30-day postponement of writ of restitution; the second 30-day period to October 14, being gratuitously extended before recourse to possessory writ following the prior judgment.
Validity of the forcible entry proceedings is not questioned, appellant simply contending that the judgment therein had been satisfied or at least novated by the subsequent agreement relative to rental and possession.
Courts are not inclined to extend the injunctive arm to contests involving realty, where the issue concerns a right of possession thereto. In the instant case appellant seeks to defend against a justice court writ of possession, valid and legal on its face, by district court injunction, without any showing that his remedy at law has proved fruitless or unavailing. In cases closely analogous, the litigant has been remitted to his relief at law. See Burris v. Myers, Tex. Civ. App.
The rule is likewise well settled that the grant or refusal of a temporary injunction is a matter largely within the trial court's sound discretion. No abuse thereof being shown here, the ruling complained of will not be disturbed. Pancake v. Kansas City Life Ins. Co., Tex. Civ. App.
Accordingly, the judgment refusing grant of interlocutory injunction is affirmed.