Hunt v. Hunt

215 S.W. 228 | Tex. App. | 1919

This is an appeal from an interlocutory order granting a temporary injunction in favor of appellee who sued appellant for a divorce. The injunction restrains appellant from in any manner interfering with plaintiff in the cultivation and harvesting of certain crops, and from interfering with her free exercise of the use of certain teams, tools, and farming implements, and from incumbering the same in any manner, and from "entering, going, or being about the home of plaintiff," or in "any manner molesting or intruding himself upon the presence of plaintiff." There is no contention that the petition fails to state a cause of action.

No briefs have been filed, but appellant presents three assignments of error. The first contention is that the affidavit to the original petition is not sufficient, in that it is not direct and unequivocal. The affidavit is not subject to the criticism directed against it.

The second contention is that the injunction should not have been granted because the petition shows on its face that all of the property enumerated therein is community property and plaintiff has an adequate remedy at law.

We know of no adequate remedy at law of which appellee could have availed herself; but, even if there had been, she would not, by reason of that fact, have been precluded from availing herself of the remedy of injunction. Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994; S.W. Tel. Co. v. Smithdeal, 104 Tex. 258, 136 S.W. 1049.

The court is expressly authorized by statute to make such temporary orders respecting the property and parties as shall be deemed necessary and equitable. Article 4639, R.S. 1911.

As stated in the case of Crawford v. Crawford, 163 S.W. 115, the power thus conferred is a broad one. It is not restricted, as is apparently contended by appellant, by the article of the statutes relating to division of the property upon the trial of the case, or the article authorizing the court to grant alimony during the pendency of the suit. There can be no question of the power of the court to give one of the parties to a divorce suit the exclusive custody and control of the property during the pendency of the suit, when it is made to appear that such relief is necessary and equitable. The facts alleged in this case warrant the relief granted.

There can be no doubt of the right of the court to issue the injunction without notice to appellant. Article 4651, R.S. 1911.

Judgment affirmed.