88 S.W.2d 769 | Tex. App. | 1935
This appeal is prosecuted from the fiat, or order of Hon. Sam Russell, judge of the district court of Palo Pinto • county, made in chambers awarding, without notice or hearing, a temporary injunction, in part prohibitory and in part mandatory, in favor of S. R. Smart, and against C. C. Morgan and wife, Ellen Morgan. The writ of injunction was in accordance with the judge’s order, and enjoined the defendants C. C. Morgan and Ellen Morgan from “entering upon all lands and properties described in plaintiff’s petition and from going on said land for any purposes, and from gathering the pecans on said land, or any part thereof, and from moving said pecans from said land and selling same, or any part thereof, and from interfering in any way with plaintiff’s cattle.” The mandatory provision of the order was a direction to the defendants that “You * * * vacate the house in which you now live located on the above said land and give possession of same at once until further orders of the district court of Palo Pinto County, Texas, to which this writ is returnable.”
All questions presented relate to the legal sufficiency of plaintiff’s petition to authorize the temporary injunction. The petition sought no other or different relief than that specified in the prayer for temporary injunction. Other than the Usual and formal prayer for general and special relief, and for the issuance of citation, the only relief prayed, beyond that sought and obtained in the temporary injunction, was that “said injunction be made perpetual.” In other words, except as to the time of its duration, the temporary injunction, if valid, accomplished every purpose of the lawsuit.
In James v. E. Weinstein & Sons (Tex.Com.App.) 12 S.W.(2d) 959, 960, it was declared: “The law is well settled in this state that the purpose of the issuance of a temporary injunction is to maintain the status quo in regard to the matter in controversy, and not to determine the respective rights of the parties under the cause of action asserted or defenses urged.” This declaration of the law has been followed in subsequent cases, notably: Texas Co. v. Watkins (Tex.Civ.App.) 82 S.W.(2d) 1079; Southland Life Ins. Co. v. Egan (Tex.Civ.App.) 79 S.W.(2d) 899; Houston Funeral Home v. Boe (Tex.Civ.App.) 78 S.W.(2d) 1091; Williams v. De Fee (Tex.Civ.App.) 77 S.W.(2d) 729; Thurman v. State (Tex.Civ.App.) 67 S.W.(2d) 382; Crowell v. Cammack (Tex.Civ.App.) 40 S.W.(2d) 259; Coffee v. Borger State Bank (Tex.Civ.App.) 38 S.W.(2d) 187; Nelson v. Thompson (Tex.Civ.App.) 64 S.W.(2d) 373. Corpus Juris deals with the same subject as follows: “An interlocutory or preliminary injunction is a provisional remedy granted before a hearing on the merits, and its sole object is to preserve the subject in controversy in its then existing condition and without determining any question of right, merely to prevent a further perpetration of wrong or doing of any act whereby the right in controversy may be materially injured or endangered until a full and deliberate investigation of the case is afforded to the party.” (Italics ours.) 32 C.J. p. 20, § 2. As supporting the text, the following Texas cases, including some of those above, are cited: John Dollinger v. Horkan (Tex.Civ.App.) 202 S.W. 978; Allen v. Knox (Tex.Civ.App.) 195 S.W. 1169; City Com’rs of Port Arthur v. Fant (Tex.Civ.App.) 193 S.W. 334; McFadden v. Wiess (Tex.Civ.App.) 168
In the light of the foregoing, and the rule that the allegations in applications for temporary injunctions must be so specific and certain as to exclude any inference of the existence of facts which would show no right to the injunction, what was the status quo in this case which it is the “sole purpose” of a temporary injunction to preserve? According to the allegations, construed as above, the “last, actual, peaceable non-contested status” was that defendants at some time not stated "have gone in on said property and moved into a house on the above said land and have continuously interfered with this plaintiff’s rights to said property, and have continuously been running this plaintiff’s cattle from one part’ of said land to another, and thereby doing great damage to said cattle, and are now * * * gathering the pecans from the trees on the above said land and now preparing to haul said pecans from said land and market, sell and dispose of same.” The suit, as its ultimate purpose, seeks to have that status changed completely and perpetually, to have the defendants move off the land and stay off and refrain from doing each and all the things which it was alleged they had theretofore been doing. The temporary injunction, contrary to the “sole purpose” of such a writ, completely changed every phase of the existing status by commanding the defendants to move off the land and refrain from doing each and all the things which it was alleged they had been doing.
The principles thus far discussed apply to preliminary injunctions, whether issued with or without notice, and whether of a nature prohibitory or mandatory, and compel, we think, the conclusion that the court erred in granting the temporary injunction in this case.
It will probably be insisted that in the foregoing statement of the status quo, as reflected by plaintiff’s petition, we omitted important elements, such as plaintiff’s ownership of the land and his possession thereof. There are at least two answers to this. In the first place, a temporary injunction can no more properly be employed to change or disturb important parts'of the status quo than the entire status. In the next place, the allegations of plaintiff’s petition do not show with requisite clearness and certainty what was the true status with reference either to ownership (if important) or possession. It was alleged that plaintiff was owner, but such allegation was subsequently qualified by allegations to show that he was only a lessee. Allegations of the ownership of his lessor were qualified to show that she individually was only a part owner.
As to possession, it is true that it was alleged that plaintiff “was in possession of said land” and “has been in possession of same since” a certain date, and, further, that “all of said land is now legally in the possession of this plaintiff.” But, as already noticed, it was even more specifically alleged that defendants have gone in on said property and moved into a house on the above said land and have continuously interfered with this plaintiff’s rights to said property, and have continuously been running this plaintiff’s cattle from “one part of said land to another” and doing the other things alleged which were not only entirely consistent with the claim on the part of defendants of a right of possession, but the fact of an actual possession. These allegations are perhaps best harmonized by construing the allegations of plaintiff’s possession as a constructive, as distinguished from an actual, possession. There was no allegation as to when defendants moved into the house. For aught the averments express, or. reasonably imply to the contrary, the
Being of the opinion that the order was erroneous and should be reversed, with instructions to dismiss the application for temporary injunction, it is accordingly so ordered.
