Baumberger v. Allen ( 1908 )

Certified question from the Court of Civil Appeals for the Fourth District, as follows:

"In the above entitled and numbered cause, pending on appeal in this the Court of Civil Appeals for the Fourth Supreme Judicial District of Texas on motion for rehearing, a question of law arises which this court deems advisable to submit to your honorable court for adjudication and has accordingly directed me to certify to your honorable court the following question:

"Explanation. "D.P. Allen filed a petition in the District Court on July 11, 1907, with the following fiat of the judge written thereon: "Upon the filing of this petition and plaintiff giving bond in the sum of two hundred and fifty dollars conditioned as required by law, the clerk will issue a temporary writ of injunction as prayed for.

"J.L. Camp, Judge.

"The writ was issued and served same day. On July 15, 1907, defendants Baumberger and De Leon filed their motion to dissolve said injunction. On July 31, 1907, plaintiffs and defendants amended. On same day the court heard the motion to dissolve upon testimony and overruled the motion and adjudged as follows as appears from the minutes: `And the temporary writ of injunction heretofore issued on the 11th day of July, 1907, commanding the defendants to desist and refrain from removing the said barn of the defendant, Charles Baumberger, to or near the southwest corner of Lot one in Block forty-three on the corner of Evergreen and Nixon streets in the city of San Antonio, Bexar County, Texas, belonging to said defendant, Charles Baumberger, or to any other point on said lot where the same will interfere with the light and air of plaintiff's home or become a nuisance to said plaintiffs, and the same remain in full force and effect until the further orders of this court.'

"From this order defendants gave notice of appeal and filed transcript in this court on August 7, 1907, which was within fifteen days from the last mentioned order but more than fifteen days from the fiat of the judge, endorsed on the original petition, but not otherwise `entered of record.'

"Question. Has this court jurisdiction to consider the appeal?"

We reply that the Court of Civil Appeals had no jurisdiction to consider the appeal in this case.

The right of appeal from an interlocutory order granting or dissolving a writ of injunction rests solely upon the second section, "of an act to amend article 2989, title 56, of the Revised Civil Statutes, with respect to the granting of injunctions, and providing for appeals from judgments or orders from trial courts in such cases, and declaring an emergency." (Laws 30th Leg., p. 206). Section 2 of said Act is in these words: "Any party or parties to any civil suit wherein a temporary injunction may be granted or dissolved under any of the provisions of this title in term time or in vacation may appeal from the order or judgment granting or dissolving such injunction to the Court of Civil Appeals having jurisdiction of the case; provided, the transcript in such case shall be filed with the clerk of the Court of Civil Appeals not later than fifteen days after the entry of record of such order or judgment granting or dissolving such injunction." Article 2995, Revised Statutes, provides: "Upon the grant of any writ of injunction, the party to whom the same is granted shall file his petition therefor, together with the order of the judge granting the same, with the clerk of the proper court." This is the only provision of the statute prescribing what shall be done with the order of the court made in vacation, and we think that the filing of the petition with the order endorsed thereon constitutes the "entry of record of such order" within the meaning of section 2 of the Act of 1907 above copied. (Walstein v. Nicholson, 19 Texas Ct. Rep., 898.) It follows from the provisions of the law above quoted that, in order to confer jurisdiction of the appeal upon the Court of Civil Appeals, the transcript must have been filed within fifteen days from the 11th day of July, 1907.

No right of appeal is given from an order refusing to dissolve a writ of injunction, and the language used in the entry of such order to the effect that the writ of injunction previously granted should continue in force until the further order of the court was not the granting of a writ of injunction and was wholly unnecessary to the continuance in force of the writ theretofore granted. The fact that the plaintiff filed an amendment to his petition can not confer the right of appeal upon the parties in this case because it does not appear from the record that the court would have dissolved the existing injunction without the amendment and that the continuance of it was, in effect, the granting of a new writ.