Fisher v. City of Bartlett

Appeal from a final judgment denying a perpetual injunction.

This case was formerly before us upon appeal from an interlocutory order of the trial court denying to appellants (plaintiff and intervener below) a temporary injunction against appellees. We affirmed the trial court's order [76 S.W.2d 535], and the Supreme Court dismissed an application for writ of error. The Supreme Court had potential jurisdiction (see Burguieres v. Farrell, 87 S.W.2d 463) of the case upon that appeal. Rev.Civ.Stat. art. 4662; Houston Oil Co. v. Village Mills Co.,109 Tex. 169, 202 S.W. 725, 226 S.W. 1075. Therefore the effect of the dismissal order constituted an adjudication by that court that the judgment of this court as "a correct one." R.C.S. art. 1728, as amended by Laws 1927, 40th Leg., p. 214, c. 144, § 1 (Vernon's Ann.Civ.St. art. 1728).

Our judgment of affirmance was rested upon the sole ground that appellants did not have a litigable interest in the subject-matter of the suit, essential to authorize them to maintain the suit. That holding is conclusive here as it was in the former appeal. As regards this issue, the record now in no essential particular differs from the record then; a fun statement from which is given in our former opinion. It would serve no useful purpose to repeat that statement or the conclusions upon which our holding was rested. We therefore refer to that opinion and make it a part of this opinion for all pertinent purposes.

The trial court's judgment is affirmed.

Affirmed.