Miller v. Miller ( 1927 )

Appellant submits the proposition, first, that

"The rendering of a final judgment of permanent injunction against appellant upon an ex parte hearing of an application therefor, without notice or process served upon him is void, as without due process of law."

Although "the order sounds in terms of a final judgment," yet it is evident that the order was intended and should be held to award merely a preliminary injunction or temporary restraining order. It was indorsed "in Chambers," and the writ, according to its recitals, was to operate and be in force "during the pendency of this suit or until the further orders of this court." A hearing upon the merits is yet open to appellant, as the interlocutory injunction, being merely provisional in its nature, does not conclude such right. Being purely a preliminary injunction in legal force and effect, and not a final decree for a perpetual injunction, it was not error upon the part of the judge to grant the order without notice to appellant. Article 4654, R.S.; Houk v. Robinson (Tex.Civ.App.)160 S.W. 120; Williamson v. Cayo (Tex.Civ.App.) 198 S.W. 643.

The appellant next insists that the order was void because (1) "the defendant is enjoined from the commission of a criminal act"; and (2) "it is founded on a petition subject to general demurrer." The petition does not seek relief against injuries which already have been committed, nor to restrain the probable doing only of "serious bodily injury to her, her children, and her mother." The acts are set up to show a well-grounded apprehension of special injury to the appellant, in violation of her private rights. The petition by intendment founds the right to relief against the repeated and unauthorized acts of the defendant in "coming to the home of this plaintiff at any and all hours of the night and day" and there continually acting in an offensive and threatening manner. Such unlawful behavior and conduct of defendant in respect to applicant's private home is connected with violations of her private and valuable rights. The enjoyment of lawful peace and private use of her home is thereby infringed upon, broken, and disturbed. The deprivation of these privileges, with the reasonable probability of indefinite continuation if no injunction is granted, is the sum of the complaint.

There is involved in the second ground the point that the petition does not pray for a temporary injunction. It has been repeatedly held that the judge has no authority to grant a temporary injunction, such as the present one is, when there was no prayer for that character of relief. Boyd v. Dudgeon (Tex.Civ.App.) 192 S.W. 262; Hoskins v. Cauble (Tex.Civ.App.) 198 S.W. 629; Fort Worth Acid Works v. City of Fort Worth (Tex.Civ.App.) 248 S.W. 822. Accordingly, the judgment is reversed and judgment is here entered vacating the order, without prejudice in future proceedings on amended petition. The cost of the appeal is taxed against the appellee.

We have noted the appellee's suggestion that "the court was authorized and had jurisdiction to add an injunction to the divorce decree, for the welfare and protection of the children involved." Even so, and assuming for the moment that the application was sufficient for the purpose, "proper notice thereof to the defendant" was first required to make the order legal, as expressly announced in the case cited.