*1 weeks, incapacity, more than 300 error. discussed, For the errors cause remanded. (No. 3316.) OWEN et al. WILLIS. Appeals Amarillo. of Texas. Civil Sept. 11, 1929.
Rehearing 9, 1929. Denied Oct. Rehearing Oct. Denied
Second Motion Hamilton, Fitzgerald Grundy, of Mem-
phis,
appellants.
Bell,
Diggs
E. E.
Williams
appellee.
Willis,
HALL,
appellee,
instituted
against
this suit
Mrs. Jonnie
hus-
band,
Owen,
Telephone
and the Southwestern Bell
Company, to restrain the defendants
breaching
3, 1929, by
a contract dated June
Clyde E.
the terms
undertaking
Owen sold his
hi the
of Chjldress
'agreed
not to enter
Willis and
during the
follow-
years.
company
ten
defendant because the
use a
made a
certain
number was
issue.
temporary
July 9,
issued on
and served
de-
who,
except
seems,
Clyde E.
fendants
residing in
is’
Oklahoma.
Bill Owen filed
their
*2
Clyde
any way interested,
E.
is in
and motion to dissolve
Owen
con-
amended answer
pre-
in,
or
The matter was
cerned
connected
said funeral
with
pleadings
opened
'home
name of Bill Owen.
and
trial court on the
conducted under
sented to the
overruling
alone,
further
and resulted in a
denies
operated
dissolve, except
said
as to the
funeral home is
under the name
motion to
the
to use the
Clyde
subterfuge
Bill
number and to withhold of
Owen as a
Owen and wife are
real
owners
of customers as
and true
list
Owen,
Owen,
Bill
and of
funeral
Mrs.
the business. It is denied that the
of the business.
the
by Clyde Owen,
plaintiff
appealed
purchased
or
from this
coach was
he is
participating
management
petition for
in
con-
in
or
3, 1929,
profited
alleges,
Clyde
That on
trol of
business
or
in substance:
June
said
or has
Owen,
profit
Jonnie
will
in
Owen
Mrs.
further
and
it.
alleged:
undertaking
opposed
engaged
in
in
business
That Mrs.
was
Owen
Clyde
plaintiff,
that,
Childress,
firm
E.
and
in
under
name of
of said business to
sale
Company,
satisfy
Clyde
agreed
Undertaking
her,
that their order to
to
Owen
and
Owen
give
proceeds
on said date
her half of the
the sale as
number
That
was 600.
Clyde
value,
separate property,
transferred
her own
and that
sold and
Owen,
plaintiff, together
in
with
consideration of her
to
said business to the
tools,
equipment, material, supplies,
responsibility
support
fix-
aE
tures of
of
engage
assume full
for the
and
character,
agreed
every
good
children,
wiU
their minor
maintenance of
business,
agreed
pay
community
and
not to to
debts from his own
said
county
in
business
share of the
sale. That Mrs.
such
said
of such
period
years
employed,
accepted $4,500, being
and not to be
Owen
one-half of
of ten
by any person
business,
sepa-
indirectly,
directly
so en- sum
for said
or
received
Clyde
gaged during
period.
property,
That soon after
rate
and that she and the said
said
Clyde
separated
Eving
se-
Owen and his wife
Owen are now
and are not
such transfer
together
building
from where
about
block
as husband and wife. That Mrs.
cured
the
one
business,
separate
plaintiff
purchased
for the
coach
of her
had located his
Owen
out
originally
purpose
busi- estate.
Mrs. Owen
intended
an
That
equipping
competition
plaintiff,
undertaking
partner,
with
to establish
with
ness
business
building
paid
funds
Bill Owen
each
with the
as a
to invest
said.
money.
equal
plaintiff.
they
have advertised that
amount
Bill
That
That
Owen
pay
capital
the defendant
the name of
unable
business,
share
into the
is conducted under
to
brother,
Clyde
whereupon
agreed
and
Owen
who is
Mrs.
BE1
Owen’s
lady
convey
prop-
assistant
is to act
the funeral coach and all other
that Mrs. Owen
in
and wife and children
Clyde
erty purchased by
Owen
establishment. That
said business to
said new
into and
have moved
Owen
lend him
sufficient
occupying
building.
operate
the claim
That
funds to
said
-by
dertaking
That,
payment
establishment.
business is owned
that said
fraudulent,
subterfuge,
equipment,
only
untrue.
for the coach and other
wife are the real
executed and
sum of
her his
That
delivered to
note
business,
$3,600,
16, 1929,
dated
due
true
said
June
owners
purchased
coach
the funeral
twelve months after
Owen himself
date. That said business
pur-
business,
same was
now
owned and
BiE
used
said
conducted
.premises
him from the
chased
leased
with
payment
now be- him and in his
for the business
own name. That none of the
property
plaintiff.
purchased
ing
That the mort-
so used
either
or is
purchase price
given
gage
of now owned
to secure the
but that Bill
same,
coach
executed
Owen is the sole and
Was
owner of the
said
attempt
having
subterfuge,
purchased
is an
it from Mrs. Owen
husband, Clyde Owen,
had to
issuance of the
to show that
nothing
it,
by Clyde
bill
and was so executed
of sale executed
to do with
good
liabEity
violation of the
wül
contains this
“I
recital:
do fur-
evade
contract
plaintiff.
bargain,
convey
That Bill Owen ther
sell and
to the said
made
H.'Willis,
good
per-
property or means with which to en- Everett
aE of the
had no
gage
taining
knew,
when he
said
in such business
further bind and
obligate myself
charge
take
of such busi-
in said
came Childress
ness,
parties
were in said
or in
all of the acts of said
Childress
Childress Coun-
years
plan
ty,
pursuance
ensuing
or scheme to
for the term ten
next
evade
in
liabEity
any
after this date or in
kind
for violation of said
will con-
of business or
any
relating
directing,
matter
to funeral
em-
tract.
balming,
undertaking whatsoever,
answer of the
defendants
The amended
directly
indirectly,
by any
Mrs. Jonnie Owen
or
or
person,
corporation
firm or
said
said
or
each
denies
which tends to
acy,
conspir- County, engaged
in funeral
show
fraudulent
undertaking,
scheme,
understanding
years
to evade the
within ten
next
contract,
succeeding
and denies that said
this date.”
of said
terms
agree
contention of
Bill. Owen was
justified
overruling
acquired
the court was
which Willis
under
join
admissions
her husband in tion to dissolve
Jonnie Owen
nor did Mrs.
answer, and,
intro-
no evidence
busi-
since
in the transfer
said contract
duced,
think
we
ness.
*3
hearing.
pending
action,
pe-
gist
the
a final
the
as
of
that, through
injunction,
a fraud- Mrs. Owen was Interested
the
is
for
tition
ulent
husband,
conspiracy
bound
her
Willis could have
entered into with
pud
really belongs
defendants,
to do.
the
This he failed
her
contract.
business
being
the
the
lending
held
of
the
that the mere
is
to
name of
but
person engaged
in a
does
similar business
to a
not amount
assisted
true, clearly
a
not to
covenant
are
to breach of
facts
Unless these
Owen.
the
and,
if it were
a tem-
in such
even
entitled
not
the
permanent
had
porary
gations
These alle- shown that
advanced
purchase
for
of the coach
the answer
funds
the
longed
the
denied
are
actually
be-
Owen.
loaned
and Mrs. Jonnie
filed Bill Owen
opinion
him,
4663,provides
that
still we
to the
incline
art.
Rev. St.
gov
injunction
procedure
principles, practice,
should
that
granted.
the
the
erning
ings
proceed
appear
govern
equity
does not
of
shall
courts
gave
injunctions
wife
time
his
in was
at the
when the same are
insolvent
he
provisions
So
statute. one-half of
the
the business.
conflict with other
creditors,
shows,
equity procedure
general
he
the record
rules of
Under the
relating
and,
$9,000
though
injunctions,
from
where an answer
even
the
could,
community property,
allegations
and is
Willis was
he
the
denies the
circumstances, give
any part
allegations
verified,
in the der such
far as the
in so
estate,
up
responsive
facts set
such sum to her as
to the
answer are
true, and,
complain.
bill, they
if
Cauble v.
be taken
the
cannot
the
granted,
Co.,
Refining
temporary injunction
has been
Beaver-Electra
a
should
Patterson
Boykin
120;
App.)
ordinarily
(Civ.
v. W.
Id.
be dissolved.
S.
611;
Sipce
party
(Tex.
App.)
W.
not a
Civ.
(Tex.
appel-
217 W.
contract
her husband and
Harris
Thomas
the
lee,
between
Civ.
employment by
Elec.
Houston
brother-in-law
Co.
Houston
Webb v.
unless
212 W.
in no sense a
violation
Downing
the conduct of the business
her
be a fraud and a
was
fraud,
employment
this rule is not
will not
as an assistant are shown
has
While it
absolute
injunction
subterfuge.
the
dissolved,
always
sustaining
allegation
its dissolution
but that
introduced
the
fully
depends upon
completely
in a meas
and is
answer
circumstances
and the
discretionary
equitable ground
trial
denies that
ure
record discloses ho
our
dissolve the
tablished that
denied
would cause
of intervention.
which,
right
personal
accept
in
refuse to
circumstances
She therefore had
the
employment
injunction
opinion,
court to
authorized
and an
granted
The rule is well es
ab
should not be
temporary
sustaining
will be
sence of
in
J.
evidence
granting
;
itof
case where
in doubtful
C. J. 584 32 C.
defendant,
greater
T.
detriment to
Houston & Co.
C.
v. Williams
App.) 221
ultimately prevail,
would be Com.
than
S. W. 1081.
should he
refusal,
complainant
opinion,
our
caused to
In
the verification of
ultimately prevail.
However,
Humble
Collins v.
Oil
sufficient.
de
if it were
fectively
Refining
verified,
Co.
waived the
court’s,
calling
authorities cited.
If the defendant
defect
the trial
atten
conducting
Owen
business
restrained from
his
tion to it.
J. 422.
32 C.
pending
a final determination
resulting
(he
suit,
manifestly greater
injury
himto
would be
court
lower
any damages
than
sus
the cause is remanded.
by Willis,
the reason
tained
rec
Rehearing.
On Motion for
that Bill
ord shows
business
Mrs.
penses
carefully
again
premises
in rented
and has
We have
reviewed the rec-
case,
in this
that these ex ord
assistant and
during
pendency
rehearing
refused.
tion for
continue
original
hand,
find
On the other
it is not shown We
the suit
insolvent,
Owen'and his wife are
writ
that
and
vail,
resulting
if,
trial,
peremptory
pre
immediate and
man-
Willis should
“for an
datory
injunction against
damages
he has his
of action for
writ of
* * *
him violation of the terms
them
each of
of ants
at all times
the contract.
June,
carefully
day
1929, engaging
answer,
D.,A.
read
3rd
do to thé
We have
grant
only
ically prayed
general equity practice,
it. Under
in the business of
relief,
ing,
granted
specif
etc.”
will be
as is
presented
Boyce
Judge
to the district
for.
said in Hos
judge,
fol-
indorsed thereon
fiat as
who
kins et al. v.
629,
injunction
Cauble
foregoing petition
: “The
lows
toeing
it seems to
rule that
considered,
specif
is ordered that
Clerk
will not be
unless
County,
ically prayed for, citing
District
of Childress
of the
Texas,
numerous authori
things
issue a
ties.
of
824, Judge
In Ft. Worth Acid Works et al. v.
petition upon
peti-
as
tioner
with
Ft. Worth
executing
a bond
Buck
will be
adverse
said: “It
noted
and sufficient sureties
two or more
is no
re
there
$1,000.00,
straining order, and,
as the law
conditioned
sum
under the authorities
*4
8th,
July
requires.”
cited,
temporary
This
indorsed on
prayer
fiat is
the absence
upon
date
which
which
filed
would make the
restraint
judgment
clerk.
insufficient to sustain
order and
on
filed and heard
injunction.”
to dissolve was
A motion
for a
IS,
July
was introduced
See, also,
Miller Miller
v.
time,
July
18th the
act-
on
at
S. W.
Dev
294
ereux
of Jacksonville v.
upon
ing
swer,
granted
an-
the sworn
S. W.
Jack
theretofore
dissolved the
Independent
Dist. Devereux
sonville
School
v.
required
it
in so far as
573; City
Council
records and
deliver to Willis all
ants to
showing
of Ft.
v. Ft. Worth Asso
Worth
and lists of names
sales and accounts
Heating
ciated Master Plumbers
tors
Contrac
patrons
and
mo-
E. Owen
former
730; Riggins
court also
Thompson,
154,
96 Tex.
and the sworn answer
dissolve
tion to
perpetual
can
or
dissolution of the
authorize
insufficient
injunction
upon
parte Zuccaro,
final
Ex
dered
decree.
pertained to
matters.
as it
other
1917B,
579, Ann.
Tex.
Cas.
mandatory
that a
rule is
The
Mussett,
parte
Tex.
Ex
(cid:127)injunction
before
should not toe ordered
580; James
v. Weinstein
Sons
W.
Com.
hearing
judgment.
execute the
final
Rains,
(2d)
parte
Ex
12 S.W.
Ry. Co. Anderson
& G. N.
International
Tex.