*1 County, farm, prop- was found reasons Stephens venue stalled on the can erly Texas, defective, leaked, Lubbock County, burst and held in failed under warranty provisions perform of either Subdivision violation 27 or Appel- appellant. guarantee Article 1995. furnished get both sought lee without success For stated, appellant’s reasons four Company re- pellant Supply and Hilton points of error all are overruled and the pipe in pair replace defective judgment of the trial court is affirmed. they had warranty accordance with the Notwithstanding the appellee. furnished appellant Hilton
failure and refusal of war-
Supply good make Company to warranty
ranty, appellee made its replacing repairing
Stephens good by damages in sum of pipe
the said to its appellant and $7,000, sued for which sum PAYTON, Appellant, Supply Company. Hilton By material facts reason EYE, EAR, HURST NOSE THROAT & related, appellee al., that the court AND contends HOSPITAL CLINIC et Appellees. County in Lubbock venue of the suit has that, part alleged against particularly No. 7076. provisions appellant of ex herein under Appeals Court of Civil of Texas. ception 7 of Article 1995 or Subdivision Texarkana. representations hav because fraudulent appellee in Lubbock ing been made to Oct. 1958. rep County by appellant, fraudulent Rehearing Denied Nov. appellee purchase resentations induced pipe question. inferior Under cited, the authorities record before us and appellee met its believe burden of
we
establishing County Lubbock un venue in provisions Subdivision
der the
Venue Statutes. it necessary to
We do not dis deem points appellant’s concerning other
cuss raised, however, questions it is our
venue
opinion that the record event reveals appellee’s cause of alleged action
that corporation appellant
against as a arose County, giving county
Lubbock thus provisions of under the
venue Subdivision Article 1995.
23 of conclusively
The record reveals that corporation foreign
appellant doing was a Texas and at least
business appellee’s alleged against cause action County, accrued Lubbock Tex party defendants, two
as, are there of them domiciled
one Lubbock
Henry Atkinson, T. Burke, Long- L. F. view, appellant. for Kenley, Sharp, Boyland, Ritter & Will Hurst, C. Longview, Thompson, &Coe Cousins, Dallas, appellees. FANNING, Justice. appeal This is an from temporary junction. The Eye, Ear, Nose & Hospital
Throat Clinic, a charitable corporation, and Genevieve indi- vidually and Independent Executrix of the Estate of V. Plurst, R. Deceased, on 1958, filed plaintiffs suit as in cause 30,277-B in the District Court of Gregg County, 124th District of Judicial Texas, against Dr. Payton as de- fendant, alleging in effect: That the said corporation clinic owned a certain with certain clinic equipment, supplies and optical records in Longview, Texas; defendant, Dr. C. Payton, formerly employed by the clinic but that such em- ployment was plaintiff terminated corporation May 17, 1958; on that defend- Payton ant was asserting a claim to an in- terest in alleged good-will, records and equipment corporation clinic of the and was also asserting some character of claim to right of purchasing alleged good-will, equipment records and clinic; plaintiffs further alleging that de- аlleged fendant had no interest in good-will, equipment plain- belonging records ownership tiffs and had no interest equipment, supplies and records clinic, building located that in past had posses- taken in records, copied certain of sion or had plaintiffs same, and that feared that de- destroy would take and fendant said rec- ords which records had a value excess $500; alleging and further that defend- trespasser straining on ant vari-- outlining be a detail the “is will lease, ous premises things acts and tem- having no Clinic porarily on presence until a doing, restrained and that his lease premises temporary injunction constitute Plaintiff will *3 May 26,1958. hearing interference on constitutes an unwarranted the affairs hospital and business of the Defendant Dr. May on Defend- corporation; Plaintiff that 1958, presented peti- to the trial court his ant shall to the use have no tion temporary to dissolve the restrain- said name, bеlonging location or records ing requested order hearing and on the alleges that Plaintiffs. Plaintiff Clinic May 22, matter for 1958. trial court monies Defendant certain has checks re-set the in- hearing temporary on the possession Corporation his belonging to the junction May 22, 1958. Defendant in Corporation and that indebted to motion singu- dissolve denied all and in a sum in and the Cor- excess of $500.00 allegations plaintiffs’ petition lar the and poration requests accounting.” a full among pleaded things other that in effect injunction 30,277-B alleged the
Plaintiff Hurst also suit in No. Genevieve cause prior should abated because was a there that were good-will all of the and records pending Gregg suit in the District Court of during owned Dr. his life- V. R. Hurst County, Texas, 124th District Judicial time the clinic never owned 30,102-B, styled Texas under C. Dr. no au- thereof and that clinic had al., Mrs. et vs. Genevieve thority power dis- sell or otherwise date, 10, 1958, file March de- pose any good-will owned Dr. V. R. fendant alleged rights was to determine the death; Plurst at the time that Dr. of his between Dr. and Mrs. Genevieve 7, 1957, leaving December Hurst died Hurst, individually independent ex- and as written will which had been admitted Plurst, ecutrix of estate of Dr. V. R. probate duly with Genevieve Hurst Ear, deceased, Eye, and also the Hurst qualified Independent acting Executrix al., Hospital Clinic, &Nose Throat et estate, said Genevieve the said agreement growing out of a contract and community inter- one-half owning Hurst 17, 1955, signed dated R. by Dr. V. June good-will Dr. records and est said corporation Hurst behalf of the clinic Hurst R. Plaintiff Genevieve V. Hurst. Payton, alleging with defendant upon and be- alleged further information of said con- his construction of the terms threatening to that the defendant was lief tract, alleging the two suits the name of Dr. V. R. and would use question subject-matter involved practice Longview, of medicine the later suit for should and that County, Texas, that he had no Gregg (cid:127) be abated. name. Plaintiffs further right to use such other they had no alleged in effect The contract in was introduced irreparable adequate law, that remedy at plaintiffs hearing on in evidence at the un- injury result to them would harm 22, 1958. Defendant May also introduced enjoin- order entered restraining less a May hearing 22nd in evidence at said acts from the various defendant proceedings pleadings and in cause No. power. in detail their things set out 30,102-B. Other evidence was also heard May (Hon. the trial court On court. trial Hall, Judge of the 71st B. Sam Judicial 1958, after a on Texas, On sitting in the 124th District Ju- injunction, the temporary an trial court en- by virtue of ex- Court District dicial granting temporary in- an him and Hon. tered between change of benches Payton, against Dr. junction hereinafter Moore, 124th said Judge of David Judicial to, particularly referred which order more Court) entered a re- District story May 23, premises building was filed On leasеd a re- attorneys Norman, space defendant’s of record filed W. B. devoted to an eye clinic, optical quest shop separate findings with the trial court for from the eye clinic, up serving fact and and a law. conclusions of Stolzar, fact findings both did not file Dr. Norman and Irving formal corporation, in- lessees of separate and conclusions of law in a with Dr. Nor- or- man strument, (which Stolzar, independ- and Dr. operating but ently corporation, 1958), did employing der was filed on enter help, own charging collecting amended order their own fees, Payton, junction hereinafter *4 against purchasing supplies. their own Hurst, to, Dr. R. con- V. who had particularly more referred medical corporation director of the the or- findings tained detailed and conclusions. since ganization same, of on died December mentioned bond 1957. duly duly made and amended order was
approved. Dr. (allegedly ostеnsibly on corporation behalf of the this matter —with Payton, Defendant, Dr. C. dispute parties in the between with pealed. estoppel also pleading on the plaintiff corporation that The record shows deny clinic authority the of non-profit corporation charitable with ac- Dr. Hurst to execute the contract on behalf directors, operating tive officers and a hos- of corporation) the executed the contract Texas, pital owning in Longview, three- Payton.1 in with Dr. adjusted, Texas 1 salaries, “The State of such as office are “County Gregg greater.) of whichever is J Agreement year “This Contract entered For the 1956 there will be an A.D., day June, into this ($1000.) 17th of additional One Thousand Dollars Eye, Ear, & and between the Hurst Nose if there has been as much as $4000 in- Clinic, corporation, acting collections, making Twenty Throat in crease through ($20,000) per year Dr. V. R. Hurst as Business Thousand Dollars salary. Pаrty Manager, year, Party and known as of The With each if the Payton, Part, First C.Dr. W. here- of Clinic, Second Part the remains with the Party Part, percent known as of The Second will he interest accumulate a five Gregg County, Texas, (5%) good-will of value, both the “Witnesseth which value will be determined an “Party Advisory of the First Part desires to con- or Arbitration Board herein Party mentioned, the tinue services and this is to determined Part, hereby agree gathered and does Second from information the from the operations will made a Contract with Dr.- of other similar clinics. provi- Williams, providing that similar There will be no decrease in income to incorporated will be sions as that made Party the of Second Part on the first five September 1, 1953, in Contract dated percent (5%) of decrease collections. Hayter, Dr. with reference any On decrease collections above five here made the contents therein. percent (5%) adjustment the will be Party if and of “That when Second proportion made in to the above in- buys good-will equipment Part the crease. Party to said as successor Clinic the Upon complete per- retirement or Part have or of similar Second will the same disability or manent death of Y. R. protection as in said Contract. Hurst, Directors, Trustees, will “Party of Second Part is to receive following plans: one of the follow ($1000.) Thousand Dollars One increase plans (a) Party Work out of present salary year over ginning each be- Second Part the continuation January 1, 1956 if collec- Corporation. same, peri- tions remain based on the January 1, 1955, July (b) Advisory od Submit to the Board to twenty-five percent (25) equipment, the in- determine the value of rec- gross (before any good-will purchased by income crease doc- ords and to be salaries, expenses Party after tors’ but other the Sеcond Part on a simi- dent and Medical Director is directed defendant
After the death Dr. employee he is inform C. W. continued as salary practice paid in the clinic corporation medicine and was except manner con- discharged employee as an until he patients 9, 1958, Board tinue treat who May 17, are 19S8. On patients passed discharge time corporation of his Directors hospital portion corporation build- following resolution: necessary to ing if that treatment be Eye, Be it that Hurst “1. Resolved pa- well-being each of Hospital-Clinic, and Throat Ear, Nose tients.” non-profit recog- corporation a Texas given On that under the the State nizes Laws of paid a notice his termination and was prac- Texas, it engage cannot salary May, 1958. for the full month of tice and that of medicine 16, 1958, corporation, appellee On prac- engaging is not by duly recorded written executed and tice and that under- of medicine no lease, space build- leased in its *5 agreement the or action taking, of department Dr. occupied by eye the to ing of or Board will be done Directors years I. H. Stolzar for a term five might which could or be instituted per month. the sum of $805.87 interpreted as cor- engaging said the poration practice the in medicine. these possession took Dr. Stolzar the and premises lease under terms of “2. Resolved that the Vice Presi- injunc- temporary testimony his hereby Director dent and Medical acts described the tion Dr. Stolzar notify to Dr. C. directed W. his interfering with May 17, employ- that as of his de- premises possession of the leased and terminated, Pay- ment and that Dr. resulting from the confusion scribed ton be directed to vacate office in his Payton's in violation acts Eye, Ear, Throat Nose and previously served on restraining order Hospital-Clinic Longview, Texas Payton. records, and take none of the files or his records R. Hurst sold Dr. V. property by other owned Hos- ear, his nose relating to pital-Clinic Corporation. good-will Vice Presi- Board, Advisory arrangement (d) Arbitra- lar as that made with Dr. appointed Board, to Norman, with the values to deter- tion . Party by by factors, First length manner mined several usual of time Party person, naming building, one of lease on etc. Part name another (c) to Part In the the Second event the health of appoint Party a third person, these two to the Second Part should be- parteis impaired hereto to so that he will come be unable member findings. by carry perform agree be bound on and to duties Longview, hands Tex- our with connection the terms of' Witness this Con- day adjusted duplicate, as, the 17th tract, this is to be Advisory June, 1955. D. Board. A.
73*
right
practice
throat
W.
Norman
to Dr.
B.
had to any temporary
or oc-
use
appelleе
was
clinic
cupancy
March
19SS.
building
property
the clinic’s
except
right
involved in
to the extent
his
as
employee
a salaried
sub-
from ordinate
uninterrupted
Norman had
obtain a lease
ownership
possession
appellee
valid.
clinic
the sale was
employer,
before
right
Hurst, individually
Appellee
employee
anas
Genevieve
occupy
use
build-
executrix,
eye
records
and property
employer
sold
of his
was ter-
good-will
minated
(practice)
of Dr. V. R.
when Dr.
discharged
deceased,
Stolzar,
corporation.
written
to Dr. I. H.
We think
true
quo
instrument
dated
status
uninterrupted ownership
possession
and dominant
hospital
Payton,
Appellant herein,
con-
Dr. C.
and property
appellees
tends that
trial court’s
employee
as a discharged
junction
at bar disturbed
with
possession
no title
to or
quo.
appellant’s
status
with
disagree
We
question,
and property in
said сontention.
trespasser
respect
appel-
with
Transport
property,
lees’
quo
In
of Texas v. Robertson
could not assert
Co.
a status
owner,
Transports,
himself
as an
Tex.
or as a tenant or
employee
possession.
it is stated:
entitled to
quo’
preserved by
“The ‘status
Appellant contends that the trial
last,
temporary injunction is ‘the
ac
court erred
plea
in overruling his
in abate
tual, peaceable, noncontested status
ment. We
Payton’s
construe
*6
preceded
which
pending contro
the
30,102-B
cause No.
being
as
suit
Brady,
versy.’ Hartley
Tex.Civ.
v.
Specific performance of
the contract
in
408;
App.,
114 S.W.2d
Dickard
question, and in the alternative for mone
Tex.Civ.App.,
Crawley,
tary damages.
clearly appears
It
to us
833, 834.”
only
Payton
that the
claim Dr.
could have
would be under
question
the contract
in
LeComte, Tex.Civ.App., 35
In Pena v.
gives
which
right
an
purchase
indefinite
to
ap-
it
that whеre
was held
the
equipment,
good-will
appel-
records and
permissive
pellant
right
had a
in said case
lee
under
common
the
law arbi
appellees
over
of travel
land
the
tration clauses set out in the contract. The
discontinue and where
owners elected to
record
proceed
shows that no arbitration
appellant
land,
title to
said
had no
the
ings
Payton
had been had. Dr.
in his cause
appellant
preserve
to
the
the effort
said
30,102-B
No.
by appel-
a refusal
asserted
quo
traveling
alleged
in
over
status
the
to
lees
sought
compel
arbitrate and
to
them
not
pellees
well
in
land was
taken
owners’
arbitrate,
to
and in the
sought
alternative
quo
true
was the uninter-
status
monetary damages. Under
the common
owners,
by
ownership
land
rupted
state,
law
well-settled
law
of this
by
sought
appellant
injunction
compel
could not
an arbitration
denied.
was
under
the fаcts
case and
relegated
this
damages
to a suit for
any
breach
contract
between
Payton
corporation
arbitration
4 Tex.Jur, 673;
Dr.
clauses.
clinic
clear
any
Payton
ly
161;
not vest
title
to
Withee,
did
3 Tex.
Owens
Texas De
building
property
clinic cor
velopment
McGough Bros.,
Cir.,
Co. v.
5
Payton any
give
not
poration
did
Withee,
In Owens
F.2d
supra
building
from
right
to lease
the cor
(3
161)
Tex.
it is stated:
Payton any
give
not
and did
poration
rights
law,
agreement
“At common
possessory
to
the cor
non-revocable
verbally,
only
might
arbitrate
property
by parol,
poration’s building
Procedure,
trial court
Civil
and that the
obligation
If
byor
under seal.
erred
the amended order
made,
granting
enforced
award was
it was
Payton
giv-
was not
26th because Dr.
it,
not
an action
if it was
founded
thereon
party
notice
en
and that a
performed.
voluntarily
If
open court
not had.
con-
was
the matter in
refused to submit
so,
troversy,
agreeing to do
after
for-
The record
not show
does
consent,
no
was
revoked his
there
mal written notice
amend the order
remedy
other
than
suit for
upon
Payton.
parties are
served
agreement
arbitrate.
breach of the
notice
not
accord
whether actual
as to
16; Chitty’s
2, p.
Black. Com. Vol.
attorneys
given
Payton’s
one
of Dr.
2, pp.
79.”
Plead. Vol.
prior
to the
amended
filing
compel specific
could
Since Dr.
transpired
and as to what
with reference
question in
performance
of the contract
securing
entry
amended
30,102-B,
relegated
cause No.
would be
respective
order and
statements
monetary dam-
suit for
said cause
dealing with
matters
their briefs
these
30,102-B
ages. We construe said cause
outside
will not
are
of the record
a different character of suit from
being
However,
record
further noted here.
appellees in
brought
23, 1958, appellant
show that on
doеs
30,277-B to restrain Dr.
cause No.
request
make
filed
the trial court to
hospital prem-
upon
trespassing
findings of fact and
of law.
conclusions
proper-
appellees’
interfering with
ises
(which
The order
complain-
ty, and from
the other acts
doing
filed
1958) did
state detailed
of, in
fact that Dr.
ed
view the
reasons for the
hospital premises and
had no title to the
injunction, stating in
connection
fol
appellees
former
property of
and that his
“ * * *
lows :
appearing that
premises
permissive
occupy
in
Plaintiffs are entitled to the
employer had been terminated
junction
granted,
as herein
employer hospital’s discharge
em-
allegations
prayer
Plaintiff’s
within
ployee Payton.
hold that
We
*7
that
and
Motion to Dissolve
defendant’s
plea
correctly
the
in abate-
overruled
court
Temporary
plea
Restraining Order and
the
connection,
In
see the case
ment.
this
things
in abatemеnt should be
all
over
Mills
Village
Oil Co. of Texas v.
Houston
”
* * *
denied;
and
decretal
ruled
The
Co., 109
from. control judgment of his under Rule findings tions as and conclusions filed power and this could be exercised with- Rule 296.” in accordance with out notice and open without by McDonald, as stated Texas Civil T.R.C.P., nоt manda- Under Rule Practice, 1803, pp. supra, 1421-22, Sec. as tory findings for trial court file of fact follows: appeals conclusions of law in permissible terlocutory but same orders parties “Notice to opportuni- and an findings if are filed so conclusions toty heard.upon proposed action filing delay as not to of the record is not though essential as a matter of appellate Neither court. Rule both courtesy should be where afforded T.R.C.P., specifical- nor Rule T.R.C.P. possible(Emphasis ours.) ly requires that the findings trial court’s fact law must and conclusions of be for- Furthermore, held, as hereinbefore the ac- separate al- mally filed instrument tion of the trial court in amending the preferable prac- though would this order in manner in response tice stated Norvell Stahl clearly appel- he did' was Justice Westerman, supra. request It is considered lant’s findings our fact and con- fully trial cоurt author- view that the law. clusions of question by amend the ized to Appellant also in his brief makes various specific findings incorporating therein respect comments the fact of law in and conclusions the man- fact Hall, B. Judge Judge Sam of the 71st Ju- request view the which he did in ner in dicial District Court of (which Texas dis- findings fact and con- composed of trict is Gregg and Harrison law, and that this reason alone clusions heard the Counties) (cause suit to sustain trial court’s sufficient 30,277-B) specific perform- when the under amendment of. damage (No. ance and 30,102-B) was record. Judge pending Moore, before David Judge 124th Furthermore, we think Texas, do Rule District of Judicial comprises T.R.C.P., applicable to the district Gregg decree in this which County, *10 nothing was no omission or' Texas. We see There mistake unusual in case. this of portion procedure the order as the of record decretal shows that on' in the Hurst, specific 5, 1958, Decеased, perform- en- R. for Hall and Moore Judges and, contract; of proper exchanges tered ance in the alter- for the of the native, damages, num- benches. for 30,102-B upon bered civil of docket carefully We have reviewed the evidence said court. as case and well as the entire record this- did opinion court are of that the trial pre- Payton On March Dr. abuse his discretion Moore, Judge petition Judge sented his injunction. temporary Court, who of the 124th District Judicial hearing issues fiat ordering his on points Appellant’s and con- remaining petition Payton April of to be held on Dr. considered, carefully have tentions 28, 1958, and directing the Clinic constituting none them deemed are as why injunction Mrs. Hurst to show cause this error under record in reversible should be should issued and receiver respectfully case and same are overruled. appointed said prayed not be as for The is af- petition. firmed. May 17, 1958, Mrs. On the Clinic and separate Plurst Dr. against filed a CHADICK, (concurs). Chief Justice 30,- Payton court, numbered the same 277-B, enjoin seeking I for think trial court’s should Payton upon Clinic going Dr. affirmed I concur therein.
premises, petition presented etc. Hall, Judge Judge B. Sam 71st DAVIS, Justice. Court, judicial dis- District Judicial originally I This was written dissent. trict Coun- Gregg includes Harrison opinion Court, and same ties. filed, additions, changes minor showing There is no my as dissent herein. Payton’s petition was held on Dr. Payton Dr. Prior to W.C. April 28, 1958, hearing was June Eye, Ear, employed the Hurst Nose re-set. Clinic, & Throat hereinafter referred to exchange appears There record an Clinic, 315 North Center Street Hall, Judge of benches between Sam B. City Longview, Gregg County, in the District, Judge com- of the 71st Texas. Judicial Counties, posed Gregg Harrison On Dr. V. Hurst R. June Moore, Judge 124th Judge David manager Clinic, business entered District, composed Gregg Coun- Judicial Payton into a contract with wherein only. еxchange is dated ty of benches whereby contends that he 5,May 1958. Hurst and Clinic Mrs. purchase good- granted petition re- presented their Clinic, equipment together of said will and Judge Hall of the 71st straining order good-will with a interest value 5% he, acting apparently District Court business, lease a and to exchange benches, granted died under December Clinic. Dr. restraining order, operative rights as to the Differences arose request hearing upon their parties soon On March until thereafter. had, temporary injunction could re- suit in the 124th filed Judi- enjoining Gregg County against straining and Court cial District agents coming using “from about or Mrs. Genevieve In- Clinic ” * * * premises, etc. dependent of the Estate of Executrix V. *11 737 317, Ann.T.R.C.P., pre- petition Mrs. Hurst and the Rule To the Vernon’s 30,277-B, procedure cause Dr. scribed amend Clinic filed follow to Payton plea mo- or a and correct a filed abatement or decree. .The restraining temporаry Rule tion dissolve the reads as follows: May order. On any judg- “Where in the record of Payton’s plea in abatement held and Dr. court, ment or decree there shall and and were overruled motion to dissolve any mistake, omission or miscal- granted which temporary injunction culation or misrecital of a sum or restraining same effect as the money, any sums of or of name or 1958, 22, May dated order. order names, if among there is the records plea abatement, overruling the motion any of the cause verdict or instru- injunc- temporary granting dissolve and whereby writing judg- ment of such grant- any did for the tion not state reason safely ment or decree amend- injunction. temporary ed, court, it shall be corrected wherein or such decree was Payton excepted the order rendered, judge thereof 1958, 23, gave appeal. notice of On vacation, upon application of either findings of filed his motion for party, jus- according to the truth and fact conclusions law. opposite party tice of the case. The Pay- overruling A second order ap- have reasonable notice shall plea in ton’s abatement motion plication (Em- amendment.” order, temporary restraining dissolve the phasis added.) injunction, temporary required The notice in the above is rule pears transcript. The second order mandatory. The word “shall” as used 22, 1958, is states reasons for dated imperative the rule is as a word used injunction, granting the and im- obligation any and inconsistent with idea mediately signature Judge above the Elmer v. Commissioner discretion. Hall, appears paragraph: following 95; Insurance, 194, 304 Mass. 23 N.E.2d Gore, Baer 79 W.Va. 90 S.E. day May, 1958, “Entered this 26 723; Love, 1817B, L.R.A. Steinbrunner v. amendment modification of 101; Mont. 113 129 P.2d Seiner injunc- judgment granting temporary Valley Tenn. Powells Hardware 168 Co., tion dated 1958.” 406; Moyer Kelley, Tex. S.W.2d Civ.App., 93 wr. dis. nothing аt I note here that there all any in the record to indicate quotation by majority cited no May 23rd. There was made on can McDonald, Tex.Civ.Prac., 1420-1-2, Sec. of an order that does not amendment “ * * * par- 18.03 that Notice exist. opportunity upon to be ties and an heard ” * * proposed action is not essential appeal perfected his has 317, supra, in direct conflict with Rule By points of error. brings forward seven the authorities next above cited. complains of the action Point many In the course conferences in granting the amended and trial court in case, power decision of dated modified aside, modify, court to amend any notice to Dr. C. without judgment, order or decree they its open is not court. It and not before final, motion, on its own become purported amended order denied that length given discussed at considerable Judge Hall signed was made It Texas, considеration. contended Marshall, and with- that the chambers such authority. courts not have- do Payton whatever. Rule out notice to Dr. *12 738 520, Sec.T27, supra; Notice, 25 entry. Due proper to order the Tex.Jur. question But, Or may therein authorities cited. correction made an be any plication any person interested,
here
“Can such
without
is:
be done
al-
party adversely
though
person
party
notice
-affected?”
such
not a
was
Here,
(Emphasis added.)
is “No
we have an
answer
!”
to the suit.”
judgment
original
that
not be en-
could
It
logical
from
reasoning
seems
if
appellant
did not
against
because it
forced
person
is entitled to notice of an amend
any
injunc-
granting
recite
reason for
ment so
judgment
as to make the
recite
683;
required
yet,
tion
as
Rule
judgment
actually
person
rendered such
was
judgment,
that it
(assuming
amended
would be entitled to
notice
an amend
judg-
May 22nd
an amendment of the
ment to make
judgment
recite the find
ment)
granting
reasons
the same
recites
for
ings
given
granting
and reasons
such
might
The so-called
enforced.
injunction
judg
at the time the
judgment being entered without
amended
actually
ment was
rendered. There is not
appellant
any
presence
or
notice
anything
shows,
in this record that
or
attorney, presents
ques-
or
a serious
would
judge
indicate that
the trial
made
appeal”
tion of whether
not “notice of
or
the findings
gave
or
the reasons recited
actually
from
judgment
the amended
was
in the
judgment
amended
at the
time
given
That
fact
as recited therein.
pronounced
was
If
rendered.
the trial
purpose
making this
for the
mentioned
court did not
findings
announce such
pertinent
very
judge
observation:
If a trial
reasons at the time
pronouncement
judgment
inserting
such
can amend
then,
judgment,
and rendition of
such fail
same,
granting
reasons
therein the
“judicial
ure was a
error” and could not
just
legally
omit the
could
notice
corrected
his -own
25
motion.
Tex.
appeal
party
therefrom and the
ad-
527-8,
Sec.
and authorities there
Jur.
versely
completely
would
affected
cut
cited;
Hamilton,
Hamilton
Tex.Civ.
getting
off
his case
reviewed. The
App.,
hist.;
292 S.W.2d
no wr.
30
of this state will never
courts
tolerate
875, Sec. 109. The trial court is
Am.Jur.
practice.
limited to the
judgment
substitution
judgment
signed
was
The amended
be-
that should have
given
on the facts
attorney
fore
or his
had
found,
can
not substitute new find
entry
form of notice whatever
ings
judgment.
Judg
new
49 C.J.S.
Appellant
judgment.
such amended
was
456;
243, p.
Clover,
ments
§
Jones
party,
injured by
the adverse
Cal.App.2d
plains court in action of the trial prior pending Since there awas action temporary restraining order granting the and the in this case conflicts injunction, refusing temporary prior action, with the hold- In view junction to dissolve same. in this case is void 24-A Tex. Supreme Texas in Court ings of the Sec. 116. Jur. Ward, supra, of Cleveland v. the cases of the trial court should Fulmore, supra, Camp- Conn v. Benson reversed, temporary injunction dis Lillard, supra, parte bell, supra, Ex solved, and the abated remanded cause points be sustained. should the trial court with instructions to retain granted suspended upon until cause docket appellees all only gave the Judge Hall not 30,102-B determined, and there trial, it in they seek on final the relief proceed upon to with the in accordance raised disposes all the issues effect Haney Temple result suit. final law well-established both suits. It Co., Tex.Civ.App., 55 Trust temporary injunction, of this state dism.; North Texas Coach Co. v. Mor wr. part mandatory, prohibitory, either ten, Tex.Civ.App., 92 S.W.2d no wr. mandatory will prohibitory and in hist. temporary injunction when the issue