in Re: Daniel Pearson

ACCEPTED
05-15-01462-CV
05-15-01462-cv FIFTH COURT OF APPEALS
DALLAS, TEXAS
12/1/2015 3:20:15 PM
LISA MATZ
CLERK
NO. __
RECEIVED IN
5th COURT OF APPEALS
DALLAS, TEXAS
12/1/2015 3:20:15 PM
LISA MATZ
IN THE Clerk
FIFTH COURT OF APPEALS
DALLAS, TEXAS
FILED IN
5th COURT OF APPEALS
COUNTY COURT AT LAW NO. 3 DALLAS, TEXAS
12/1/2015 3:20:15 PM
LISA MATZ
Clerk
In Re Daniel Pearson
Original Proceeding From the County Court at Law No. 3 of Dallas County, Texas
PETITION FOR WRIT OF INJUNCTION
Kathy Roux
Law Office of Kathy Roux
P. O. Box 1701
Grapevine, TX 76099
Tel.: (817) 874-8877
Fax: (877) 878-5884
Email: kathy@kathyrouxlaw.com
Texas State Bar Number 24054141
ATTORNEY FOR RELATOR
ORAL ARGUMENT REQUESTED
NO. __
IN THE
FIFTH COURT OF APPEALS
DALLAS, TEXAS
COUNTY COURT AT LAW NO.3
In Re Daniel Pearson
Original Proceeding From the County Court at Law No.3 of Dallas County, Texas
PETITION FOR WRIT OF INJUNCTION
Kathy Roux
Law Office of Kathy Roux
P. O. Box 1701
Grapevine, TX 76099
Tel.: (817) 874-8877
Fax: (877) 878-5884
Email: kathy@kathyrouxlaw.com
Texas State Bar Number 24054141
ATTORNEY FOR RELATOR
ORAL ARGUMENT REQUESTED
IDENTITY OF PARTIES AND COUNSEL
The following is a complete list of all parties, as well as the names and addresses of all
counsel.
PARTIES COUNSEL
Relator:
Daniel Pearson Kathy Roux
P. O. Box 1701
Grapevine, TX 76099
Respondent:
Joseph Kemp, As Administrator of the Estate Zachary Johnson
of Lou Bertha Brooks, Deceased 500 N. Akard Street, Suite 2150
Dallas, Texas 75201-3302
Real Party in Interest:
Sharunda King Pro Se
Jastasia King Pro Se
Occupants Pro Se
II
TABLE OF CONTENTS
IDENTITY OF PARTIES AND COUNSEL ii
INDEX OF AUTHORITIES iv
STATEMENT OF THE CASE v
STATEMENT OF JURISDICTION vi
ISSUES PRESENTED vi
STATEMENT OF FACTS 1
ARGUMENT AND AUTHORITIES 1
PRAYER 3
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.30) .4
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i) .4
CERTIFICATE OF SERVICE 4
APPENDIX 5
A - Trial court's fmaljudgment signed November 20, 2015 5
B - Daniel Pearson's Notice of Appeal. 9
C - Joseph Kemp's Request for Writ of Possession filed November 30, 2015 .12
D -Pace v. McEwen, 604 S.W.2d 231 (Tex.Civ.App.-San Antonio 1980) 14
iii
INDEX OF AUTHORITIES
CASES Page
Baptist Med Ctr. V Gonzalez, 33 S.W.3d 821, 822 (Tex.2000) 3
Briones v. Brazos Bend VillaApts. , 438 S.W.3d 808,812-813
(Tex.App.-Houston [14th District] 2014, no pet.) 1, 2
EMW Mfg. Co. v. Lemons, 724 S.W.2d 425 (Tex.App.-Fort Worth 1987) 3
In Re Gruebel, 153 S.W.3d 686 (Tex.App.-Tyler 2005) 3
Kemper v. Stonegate Manor Apartments Ltd, 29 S.W.3d 362,363
(Tex.App.-Beaumont 2000, pet. dism'd w.o.j.) 2
Madison v. Martinez, 42 S.W.2d 84,86 (Tex.Civ.App.-Dallas 1931, writ ref d) .2
Marshall v. Housing Authority of City of San Antonio, 198 S.W.3d 782 (Tex.2006) 2
Pace v. McEwen, 604 S.W.2d 231 (Tex.Civ.App.-San Antonio 1980) 2, 3
Wilhelm v. Fed Nat'/ Mortgage Ass'n., 349 S.W.3d 766, 768-769
(Tex.App.-Houston [14thDistrict] 2011, no pet.) 2
TEXAS CONSTITUTION, STATUTES, AND RULES
Texas Government Code §22.221 vi, 3
Texas Rules of Appellate Procedure 9.4 4
Texas Rules of Appellate Procedure 52 vi
Texas Rules of Appellate Procedure 52.3 .4
iv
STATEMENT OF THE CASE
On August 31, 2015, respondent Joseph Kemp, as Administrator of the Estate of Lou
Bertha Brooks, Deceased, filed a Sworn Complaint for Eviction against Relator Daniel Pearson,
naming him Daniel King, and Parties in Interest Sharunda King, Jastasia King and Occupants in
the Justice of the Peace Court, Precint 1, Place 1, Dallas, Dallas County, Texas to obtain
possession of the real property located at 1914 Argyle Avenue, Dallas, Dallas County, Texas.
In response to said complaint, Relator Daniel Pearson filed Special Exceptions,
Objections and Answer. The parties in interest Sharunda King, Jastasia King and Occupants did
not appear nor file an answer.
On September 11, 2015, at the hearing on this matter, a judgment was rendered against
relator Daniel Pearson and parties in interest Sharunda King, Jastasia King and Occupants
granting respondent Joseph Kemp the premises, rent owing in the sum of $.00, attorney fees in
the sum of $.00, interest on said judgment from this date at 5.00% per annum, and all costs of
court in the amount of$296.00.
On September 14, 2015, relator Daniel Pearson filed a de novo appeal and deposited a
cash bond in the amount of $500.00 with the justice of the peace clerk. This matter was
docketed with the Dallas County Clerk, assigned to Dallas County Court at Law No.3, and set
for hearing on November 6, 2015. Counsel for relator and respondent agreed to a continuance
which was granted by the court, and this matter was reset for hearing on November 20,2015.
At the hearing of this matter on November 20, 2015, judgment was rendered for Joseph
Kemp, granting him a writ of possession and costs of court. On November 27, 2015, relator filed
a Notice of Appeal. On November 30, 2015, respondent filed a request for a writ of possession.
On November 30, 2015, relator filed a Motion to Set Amount Required to Supersede Judgment,
which was rejected for deficiencies. On November 30, 2015, relator filed a file-stamped copy of
v
the Notice of Appeal with the clerk of court for the Fifth Court of Appeal, Dallas, Texas. On
December 1, 2015, relator filed this Writ of Injunction and Motionfor Emergency Relief
STATEMENT OF JURISDICTION
This court has jurisdiction over this petition for writ of mandamus under Section
22.221(b) of the Texas Government Code and Texas Rules of Appellate Procedure 52.
ISSUES PRESENTED
Issue Number One
May the Fifth Court of Appeal grant relator a writ of injunction in order to prevent the
execution of the judgment rendered by the Dallas County Court at Law No.3 that grants
respondent possession of the real property located at 1914 Argyle Avenue, Dallas, Dallas
County, Texas in order to preserve its jurisdiction over said real property, whether or not
supersedeas is available to the appellant?
vi
STATEMENT OF FACTS
This case was docketed as a de novo appeal of a judgment of eviction rendered by the
Justice ofthe Peace Court, Precinct 1, Place 1, Dallas, Dallas County, Texas. On November 20,
2015, this matter was heard by the Dallas County Court at Law Number 3. The court rendered a
final judgment against relator granting respondent a writ of possession for the real property
located at 1914 Argyle Avenue, Dallas, Dallas County, Texas, and for costs of court.
On November 27,2015, relator filed a Notice of Appeal with the Dallas County Clerk to
appeal the final judgment rendered on November 20,2015. On November 30, 2015, respondent
filed a Writ of Possession with the Dallas County Clerk. On November 30, 2015, relator filed a
Motion to Set Amount Required to Supersede Judgment which was rejected for deficiencies. On
November 30, 2015, relator filed a file-stamped copy of the Notice of Appeal with the clerk of
court for the Fifth Court of Appeal, Dallas, Texas. On December 1,2015, relator filed this Writ
of Injunction and Motionfor Emergency Relief
ARGUMENT AND AUTHOIDTffiS
Relator's application for injunctive relief in this Court concerns the jurisdiction of this
court being threatened by respondent's enforcement of the judgment rendered on November 20,
2015 by filing a request for a writ of possession. Should respondent obtain a writ of possession,
and it is highly likely that he will, then such writ will remain enforceable during relator's appeal.
It is also highly likely that respondent will pursue a writ of execution to have relator removed
from the premises. Because respondent is proceeding to enforce the judgment, relator is at risk
of losing possession by enforcement of the writ of possession. If relator loses any right to
possession of the premises, his appeal becomes moot as to that issue. Briones v. Brazos Bend
Villa Apts., 438 S.W.3d 808, 812-813 (Tex.App.-Houston [14thDistrict] 2014, no pet.) (when
supersedeas bond not posted and writ of possession is executed in favor of landlord, action is
moot as to issue of possession because tenant no longer has claim to possession of property). See
also Wilhelm v. Fed. Nat'l Mortgage Ass'n., 349 S.W.3d 766, 768-769 (Tex.App.-Houston
[14thDistrict] 2011, no pet.); Kemper v. Stonegate Manor Apartments Ltd., 29 S.W.3d 362, 363
(Tex.App.-Beaumont 2000, pet. dism'd w.o.j.), overruled on other grounds; Marshall v.
Housing Authority of City of San Antonio, 198 S.W.3d 782 (Tex.2006).
"This court's power to grant temporary injunctions flows from the provisions of Article
1823, and the power granted by that statute is limited to the purpose of protecting our
jurisdiction." Pace v. McEwen, 604 S.W.2d at 233 citing Madison v. Martinez, 42 S.W.2d 84,86
(Tex.Civ.App.-Dallas 1931, writ ref'd).
Relying on Texas Government Code § 22.221 and prior jurisprudence, the court in Pace
clearly determined that a reviewing court may grant an injunction preventing the disposition of
property in order to preserve its jurisdiction over the property, and that the reviewing court has
this power whether or not supersedeas is available to the respondent. The Pace court further
reasoned that
[s]ince we issue injunctions only for that limited purpose and not for the purpose
of protecting a litigant, our exercise of that power in no degree depends upon the
rights of a litigant or the remedies available to him. Once our jurisdiction is
threatened, our right to preserve and protect it cannot depend on the adequacy of
legal remedies which would be available to the litigant but which are not available
to us. Whether our jurisdiction will be preserved or destroyed cannot be left to
the whim of a litigant this Court cannot file a supersedeas bond to prevent the
destruction of our jurisdiction, nor can this Court order an unwilling litigant to file
such a bond.
Pace at 233.
2
In so reasoning, the Pace court granted relator's application for injunction, pending
disposition of the appeal from the lower court's order.
"It is well settled that an appellate court is authorized to protect is jurisdiction by
preserving the subject matter of the appeal in order to make its decrees effective." EMW MIg.
Co. v. Lemons, 724 S.W.2d 425,426 (Tex.App.-Fort Worth 1987).
The court in In re Gruebel reasoned that "[a] court of appeals is authorized to issue all
writs necessary to enforce its jurisdiction. Tex. Gov't Code Ann. §22.221(a) (Vernon 2004). If
an appeal pending before this Court becomes moot, we lose jurisdiction over it. See Valley
Baptist Med. Ctr. V Gonzalez, 33 S.W.3d 821, 822 (Tex.2000). Consequently, we may issue a
writ of injunction to preserve the subject matter of a case pending appeal and to prevent the
appeal from becoming moot. EMW Mfg. Co. v. Lemons, 724 S.W.2d 425, 426 (Tex.App.-Fort
Worth 1987)." In re Gruebel, 153 S.W.3d 686 (Tex.App.-Tyler 2005).
PRAYER
For these reasons, Daniel Pearson, Relator, requests that this Court grant relator's
application for injunction pending disposition of the appeal from the lower court's order of
November 20,2015.
Date: December 1, 2015
KathyRoux
Attorney for Relator Daniel Pearson
3
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 52.3G)
This certifies that the undersigned has reviewed this Petition and concluded that every
factual statement in it is supported by competent evidence included in the appendix or record, as
required by Appellate Rule 52.3G).
Date: December 1, 2015
Kathy Roux
Attorney for Relator Daniel Pearson
CERTIFICATE OF COMPLIANCE WITH APPELLATE RULE 9.4(i)
I certify that this document contains less than 15,000 words, as indicated by the word-
count function of the computer program used to prepare it, and excluding the caption, identity of
parties and counsel, statement regarding oral argument, table of contents, index of authorities,
statement of the case, statement of issues presented, statement of jurisdiction, statement of
procedural history, signature, proof of service, certification, certificate of compliance, and
appendix, as provided by Appellate Rule 9.4(i).
Date: December 1,2015
KathyRoux
Attorney for Relator Daniel Pearson
CERTIFICATE OF SERVICE
This certifies that the undersigned served this Petition for Writ of Injunction on Joseph
Kemp, Respondent, by sending it to lead counsel for Respondent, Zachary Johnson, at 500 N.
Akard Street, Suite 2150, Dallas, Texas 75201-3302, and served it on Sharunda King and
Jastasia King and Occupants, Real Parties in Interest, by sending it by U.S. First Class Mail,
postage prepaid on December 1, 2015.
Kathy Roux
Attorney for Relator Daniel Pearson
4
APPENDIX A
5
JOHN F. WARREN
Dallas County Clerk
George Allen Sr. Court Bldg.
600 Commerce St, Ste 101
Dallas, Texas 75202-3551
STATE OF TEXAS
COUNTY OF DALLAS
I, John F. Warren, Clerk of the County Court of Dallas County Court at Law No.3,
Dallas County, Texas do hereby certify that the foregoing is a true and correct copy of
document in Cause No. CC-15-05015-C.
JOSEPH KEMP AS ADMINISTRATOR 0 ESTATE OF LOU BERTHA BROOKS,
DECEASED, PLAINTIFF (S)
VS
SHARUNDA KING; JASTASIA KING; DANIEL PEARSON, DEFENDANT (S)
JUDGMENT, filed on 20th day of November, 2015 in the Dallas County Court at Law
No.3, Dallas County, Texas.
WITNESS MY HAND AND SEAL of said Court this 20th day of November, 2015.
John F. Warren, County Clerk
BY:~
Gwendolyn Thomas, Deputy
------~
" , ) personally
"'-
a"~..
8feEYfailedto
, •
appear and the
.._
- ----:"-T'"
;11.
C<>urt proceeded to hear the case and enter Judgment in favor of the Plaintiff as set forth below. . '; :~,,+
CC- 16 - 06016 - C
COJ
ORDER - JUDGMENT
963976
'11~~ml'mmmlmllllllll
\ 1"
.... ITlSTREREFt1KI._.~~~~mthatPlajntitfJ0Sep~ " .,~,
Kemp, as Administrator of the Estate of Lou Bertha Brooks, Deceased, have judgment against
Defendants Daniel Pearson, Sharunda King, Jastasia King and all occupants for:
1. A writ of possession granting' Plaintiff possession of the premises
located at 1914 Argyle Avenue, Dallas, Texas 75203; and
4. All costs of court.
.
; ,
~
for which execution shall issue.
This Judgment is [mal and disposes of all claims and parties.
SIGNED AND ORDERED this -it; day of A!~2015.
ao~~
of the County Court at Law, No. Thee
of Dallas County, Texas
JUDGMENT- S8'18 P~e
..... -e- - _-
- _'
APPENDIX B
9
FILED
11/27/20153:36:21 PM
JOHN F. WARREN
COUNTY CLERK
DALLAS COUNTY
CAUSE NO. CC-1 5-0501 5-C
JOSEPH KEMP, AS ADMINISTRATOR § IN THE COUNTY COURT AT LAW
OF THE ESTATE OF LOU BERTHA §
BROOKS, DECEASED, §
Plaintiff §
§
v. § NUMBER 3 FOR
§
DANIEL PEARSON, SHARUNDA KING, §
JASTASIA KING AND ALL OTHER §
OCCUPANTS §
Defendants § DALLAS COUNTY, TEXAS
NOTICE OF APPEAL
TO THE HONORABLE JUDGE OF THIS COURT:
Pursuant to Rule 25.1 of the Texas Rules of Appellate Procedure, DANIEL PEARSON,
who is a defendant to JOSEPH KEMP's Sworn Complaint for Eviction, filed on August 31,2015,
gives notice of his appeal to the Fifth Court of Appeals for the Dallas County Court at Law
Number 3, sitting at Dallas, Dallas County, Texas, from the Judgment rendered by said Court in
the above-entitled and numbered cause on November 20, 2015, granting a writ of possession of
the premises located at 1914 Argyle Avenue, Dallas, Texas 75203 and all costs of court to
plaintiff JOSEPH KEMP, as Administrator of the Estate of Lou Bertha Brooks, Deceased.
Dated: November 27,2015 Respectfully submitted,
Kathy E. Roux, TBN 24054141
P. O. Box 1701
Grapevine, TX 76099
Tel.: (817) 874-8877
Fax: (817) 878-5884
Email: kathy@kathyrouxlaw.com
Attorney for Daniel Pearson
CERTIFICATE OF SERVICE
I hereby certify that on this the 27th day of November, 2015, a true and correct copy of
the foregoing instrument titled Notice of Appeal was served in accordance with the Texas Rules
of Civil Procedure to the following:
Zachary E. Johnson Sharunda King
500 N. Akard Street, Suite 2150 1914 Argyle Avenue
Dallas, Texas 75201-3302 Dallas, TX 75203
Email: zach@spencerlawpc.com
Tel.: (214) 965-9999
Fax: (214) 965-9500
Jastasia King Occupants
1914 Argyle Avenue 1914 Argyle Avenue
Dallas, TX 75203 Dallas, TX 75203
Kathy E. Roux
II
APPENDIX C
12
JOHN F WARREN
DALLAS COUNTY CLERK
GEORGE ALLEN SR COURTS BLDG
600 COMMERCE ST, STE 101
DALLAS, TEXAS 75202
REQUEST FOR: WRIT OF EXECUTIONS I ABSTRACTS OF JUDGMENTS
ORDER OF SALE AND WRITS OF POSSESSION
*CERTIFIED COPIES - ON OPEN CASE ONLY
Date: \ \- 13··lS
Case Number:
)ose~n
Cc· as\5"A·~minl~·->=m'
~mpJ
050;"~'\::;'S- t
fi)=-:("""():?f""".t"""t'I-e""8'7"Stt'l""""""le:::-=ot:""".·-rc-:-:-.o~~
8er-t-v>u\" BrOD~~ OeUfAS'ftL,Pl4innff
Style: V. !')Cinit\ eeA(1),?-O! f,barundll, (?JO"i1:tfSttAf,lo..l?'''j ~Yldall o+nuIOU4pantr; IJdendonfs
!
Party to be served: I Da.n et pea-rso n 1
Address to be served: \~ 14 A-Y]~f. A- \Ien U,f.,
Dot (laS re~Cls. ,SL03 I
Please issue:
Writ of Execution Serve by: Constable or Sheriff Mail Back:
($5 Plus $150) ($5 for issuance)
Writ of Possession Serve by: VConstable or _ Sheriff Mail Back:
($5 Plus $170) ($5 for issuance)
Order of Sale Serve by: _ Constable or _ Sheriff Mail Back: __
($5 Plus $150) ($5 for issuance)
Abstract of Judgment Forward to Recording: __ Mail Back:
** ($5 Plus $26 Recording Fee) ($5 for issuance)
Additional information
Recording the Abstract Submit a Separate check for the amount of ($26.00) make payable to:
John Warren County Clerk
Mailed to: John Warren, County Clerk
Dallas County Recording Division
509 Main 2nd Floor Records Building
Dallas, Texas 75202
Certified Copies - Pending cases are $5.00 for the first page, then $1.00 per page every page after and pay for
it through e-filing.
If it is a Closed Case,please make a check made payable to: John Warren County Clerk.
Mailed to: Dallas County Central Records
George Allen Senior Courts Building
600 Commerce St. Floor 81
Dallas, Texas 75202
Requested by: 1lALhayo f· 00 nnbOOPhone numbertl~ ~ qqqq
~S··
Attorney, laintiff or Defendan~
Attorney Address: • (j S , ft· 2tSD
Attorney City _..D<....:C1:...:...:_Il:...:.a"'-"S~ _
State and Zip Code re '/..aS ISW ,
APPENDIX D
14
11/30/2015 Search Results: (604 s.w.2d 231) (13 found)
PACE v. MCEWEN, 604 S.W.2d 231 (Tex.Civ.App.-San Antonio 1980)
604 S.W.2d 231
Joe Dudley PACE, Movant, v. John J. McEWEN, Jr., Respondent.
No. 16573.
Court of Civil Appeals of Texas, San Antonio.
June 20, 1980.
Richard G. Strong, Casseb, Leon, Rodgers, Strong & Pearl,
San Antonio, Jeffrey A. Davis, Reynolds, Allen & Cook,
Houston, for movant.
Pat Maloney, Jack Pasqual, George LeGrand, San Antonio, for
respondent.
Page 232
OPINION
CADENA, Chief Justice.
Relator, Joe Dudley Pace, has filed this original application
for injunction to stay the enforcement of an order entered by a
Bexar County district court on June 9, 1980, pending
disposition of relator's appeal from such order.
In 1977 respondent, John J. McEwen, Jr., obtained a money
judgment against relator which has not been satisfied.
Respondent, after the 1977 judgment had become final, filed, in
that same case, a "Motion in the Nature of a Bill of Discovery
and Motion for Declaratory Relief." In this proceeding
respondent sought judgment allowing respondent to execute upon
real estate located in Harris County, legal title to which is
in relator, in satisfaction of the 1977 judgment; and a
declaration that equitable title to such land lies in the
estate of respondent's testatrix. The motion also contained a
prayer for general relief.
The June 9, 1980, judgment, from which relator has perfected
his appeal, declares that the Harris County land is not the
homestead of relator and not exempt from forced sale or
execution. The judgment orders relator to turn over such
property to the Sheriff of Harris County and orders that
sheriff to sell the property to the highest bidder according to
the laws and procedures provided for executions. Finally, the
judgment decrees that relator shall turn over said land to the
sheriff not later than 12:00 o'clock noon on June 19, 1980, and
that should relator fail to do so, the court "shall enforce
this order by proceedings for contempt or otherwise in case of
refusal or disobedience, all as provided by
Tex.Rev.Civ.Stat.Ann. art. 3827 (a)(3827a)."
Relator's application for injunctive relief in this Court
concerns only that portion of the June 9, 1980, judgment which
orders him to turn the property over to the Sheriff of Harris
County no later than noon, June 19, 1980.
Whether the judgment entered below is one which the trial
court had authority to enter under the statute referred to in
the judgment is a question which is not now before us, nor are
data:text/html;charset=utf-8.%3Cpre%20style%3D%22margin%3A%200PXO/~%20padding%3A%200px%3B%2Ofont-family%3A%2OCousine%2C%20Courie... 1/3
1"
11/30/2015 Search Results: (604 s.w.2d 231) (13 found)
we at this time called on to determine whether the relief
sought by respondent's motion "in the nature of a bill of
discovery" is available under that statute or under other rules
relating to discovery.
Article 1823, Tex.Rev.Civ.Stat.Ann. (Vernon 1964), gives
this Court the power to issue such writs as may be required to
protect and preserve its jurisdiction. We agree with relator
that unless injunctive relief is now granted, he will be forced
to comply with that portion of the judgment requiring him to
turn his property over to the sheriff for sale at execution,
and any opinion we might subsequently render as to the validity
of that portion of the judgment would be meaningless.
Respondent urges that under Rule 364, Tex.R.Civ.P. (1977),
relator had the right to prevent any portion of the judgment
below by filing a supersedeas bond. We are in agreement with
this statement, but we do not agree that this Court is deprived
of the power to issue the relief sought by relator because Rule
364 affords relator an adequate remedy at law.
In Burch v. Johnson, 445 S.W.2d 631, 632 (Tex.Civ.App.-El
Paso 1969, no writ), the Court, in a per curiam opinion, said:
Both injunction and prohibition do not lie where
there is an adequate remedy through the ordinary
channels of procedure. It is clear that Rule 364
affords the relator the right to suspend the
judgment against it by giving the supersedeas bond
thus staying (enforcement of the judgment) .
Having a complete provisional remedy at law, the
relators are not entitled to the relief sought.
A similar holding was made in Dallas Bank & Trust Co. v.
Thompson, 78 S.W.2d 740 (Tex.Civ.App.-Dallas 1935, no writ) .
In Landrum v. Centennial Rural High School Dist., 146 S.W.2d 799
(Tex.Civ.App.-Austin 1940, writ dism'd judgmt. cor.), the
Court pointed out that a party wishing to prevent enforcement
of a judgment from which he has perfected an appeal had two
remedies available: "First, to obtain pending
Page 233
the appeal a temporary injunction.. Art. 1823, R.S. 1925.
Second, appellants could have superseded the judgment of the
trial court .... " 146 S.W.2d at 801.
The rule which respondent seeks to apply has undoubted
application in cases where the purpose of the injunction is to
protect the rights of a litigant. This court has no power to
grant a temporary injunction to prevent damage to an appellant.
That power is vested exclusively in trial courts. Our power to
issue injunctions flows from the provisions of Article 1823,
and the power granted by that statute is limited to the purpose
of protecting our jurisdiction. See Madison v. Martinez, 42 S.W.2d 84,
86 (Tex.Civ.App.-Dallas 1931, writ ref'd). Since we
issue injunctions only for that limited purpose and not for the
purpose of protecting a litigant, our exercise of that power in
no degree depends upon the rights of a litigant or the remedies
available to him. Once our jurisdiction is threatened, our
right to preserve and protect it cannot depend on the adequacy
of legal remedies which would be available to the litigant but
which are not available to us. Whether our jurisdiction will
be preserved or destroyed cannot be left to the whim of a
litigant this Court cannot file a supersedeas bond to prevent
the destruction of our jurisdiction, nor can this Court order
data:textlhtml;charset=utf.8,%3Cpre%20style%3D%22margin%3A%200px%3B%2Opadding%3A%200px%3B%2Ofont·family%3A%2OCousine%2C%20Courie... 213
110
11/30/2015 Search Results: (604 s.w.2d 231) (13 found)
an unwilling litigant to file such a bond. To hold that the
availability of supersedeas to a litigant in any way affects
the power granted to this Court to protect its jurisdiction is
to ignore the reason for the grant of power and the purpose to
be served by its exercise.
We decline to follow Burch and Dallas Bank & Trust Co.
Relator's application for injunction, pending disposition of
the appeal from the order of June 9, 1980, is granted.
MURRAY, Justice, dissenting.
I dissent. The record in this case shows that the relator
has made no attempt to suspend any portion of the judgment
below by the execution of a supersedeas bond. Tex.R.Civ.P. 364
has application to judgment such as the one under consideration
here. In this case I would follow the reasoning in Burch v.
Johnson, 445 S.W.2d 631 (Tex.Civ.App.-El Paso 1969, no writ),
and deny the injunction.
data:textlhtm I;charset=utf-8. %3Cpre%20style%3D %22margin%3A %200px%38%20padding%3A %200px%38%2Ofont-fam ily%3A%2OCousine%2C%20Courie.. . 3/3
lq-