173 S.W. 539 | Tex. App. | 1915
The appellee presented an application for injunction, with affidavits in support of same, to the judge of the district court, who in vacation acted on such application and affidavits attached, and granted an interlocutory injunction without any notice upon the opposite party and without fixing or requiring any bond of the applicant. The appeal is made under the statute from such order. The writ was in accordance with the order of the judge. The order of the judge restrained the sale of specific property of the defendant in execution under an execution from the district court of McLennan county, and further enjoined the "employés" of particular parties "from levying upon any property or enforcing or collecting said judgment of the district court of McLennan county." The judge provided the duration of the interlocutory injunction to be "until the further orders of this court to be made in this cause at the next regular term of this court." The fiat of the judge was dated November 27, 1914.
The statute expressly requires the judge to fix the amount of the bond in his order for the injunction, and it is essential to directing the issuance of the writ. Article 4650, R.S. The allegations of the application may have shown equities to authorize the direction of injunction to prevent sale of the specific property through means of the execution procured on the application of one alleged not to be authorized to demand and insist upon its issuance. But the owner of the judgment was not a party to the application, and the future enforcement of the judgment by execution at any time by the owner or its authority was not a subject-matter within the authority of the judge on the application here. And it is not made clear by the wording of the order that the restraint of "employés" of the alleged parties did not include the real owner or its authorized representatives.
It is concluded that the order of the court and the extent of the writ is erroneous. It would serve no purpose for this court to correct and modify the order of the judge. It is apparent from the fiat of the judge that he intended the interlocutory injunction to operate only until the first regular term of court thereafter, perhaps conceiving that on a full hearing under answer it would be better ascertained whether appellee would be entitled to a further restraining order or not. This court judicially knows that the "next regular term" of the district court in Harrison county was in January. Acts 32d Leg. p. 93 (Vernon's Sayles' Ann.Civ.St. 1914, art. 30). And the appeal in this case did not have the effect to continue in force the temporary restraining order beyond the time fixed by the court for its duration. Article 4644, R.S.; Railway Co. v. Railway Co.,
The order of the judge is reversed, and the cause remanded for such other and further orders as may be legally warranted.
