Johnson v. Sunset Stores, Inc.

PELPHREY, O. J. On the 16th day of January, 1930, appellants presented their petition for injunctive relief and the appointment of a receiver to Hon. J. A. Drane, judge of the One Hundred Ninth judicial district, who certified his disqualification. The petition was then presented to Hon. Ballard Coldwell, judge of the Sixty-Fifth judicial district, who entered the following order: “The above and foregoing petition being on this the 17th day of January, 1930, presented to me in chambers, and it having been made to appear that the Honorable J. A. Drane, Judge of the One Hundred Ninth Judicial District, wherein said cause arises, has refused to act upon the prayer as contained in said petition for preliminary relief, the reasons therefor as stated by said judge are made part hereof, and said refusal being further made to appear by the affidavit of A. PI. Culwell, hereto attached,' I, after consideration of plaintiffs’ verified petition, have concluded that the plaintiffs are entitled to certain of the restraining orders as therein prayed for. “It is, therefore, by me ordered that upon the filing of said petition in the office of the District Clerk of Reeves County, and the giving of bond as required by law and conditioned as required by law, in the sum of Two Thousand Dollars ($2,009.00), same to be approved by the Clerk of the District Court of Reeves County, the said clerk shall forthwith issue a restraining order wherein and whereby the defendants, except Security State Bank, shall be restrained as follows: “(a) From disposing of any of ¡the' assets of the Pecos Mercantile ,ComPn.ny, save and except merchandise may -be bought or sold in the due and orderly ,condnct of the regular business of said corporation. “(b) It is further ordered that each and all of the defendants herein be, and they are hereby, restrained and enjoined from taking any action at the annual meeting of the stockholders of the Pecos Mercantile Company now called to be held at Pecos, Texas, on January 20th, 1930, or any other meeting of the stockholders of said Corporation, other than to postpone such meeting until hearing is had on the injunction herein prayed for. “(c) It is further ordered that the defendant Security State Bank is here and now restrained from paying any checks drawn on and against an account in said bank standing in the name of the Pecos Mercantile Company as a special account, whether said account be for $40,000.00 or other amount. “(d) This restraining order shall remain in full force and effect until further orders herein and hereon by courts or judges of competent jurisdiction. And the Clerk of the District Court of Reeves County is directed to cause certified copies of these orders to be made, which shall be served upon the defendants herein, said service to be accomplished as to those defendants found within the jurisdiction of this court in the manner and form that writs of injunction are required to be served, and as to those defendants without the jurisdiction of this court, said service shall be accomplished by sending to them and each of them, by United States Mail at their last [646] known address, a certified copy of these orders, and in each and all of the orders so served the said defendants shall be notified to appear before the One Hundred Ninth District Court, at Pecos,'Reeves County, Texas, on the 27th day of January, 1930, at ten o’clock, at which time they shall 'show cause why a temporary injunction should not issue herein as prayed for by plaintiffs, and said defendants shall be further notified that a hearing will be held before said court on the 27th day of January, 1930, at Pecos, Reeves County, Texas, at ten o’clock, at which time it will be determined whether or not a receiver shall be appointed to take possession of the properties of the Pecos Mercantile Company as prayed for in plaintiff's petition.” On February S, 1930, Hon. W. R. Chapman, presiding judge of the Seventh judicial district of Texas, ordered the Hon. Chas. L. Klapproth, judge of the Seventieth district, to exchange districts with the Hon. J. A. Drane for the purpose of hearing this cause, and on February 27, 1930, the Hon. Chas. L. Klapp-roth rendered the following judgment therein: “This cause coming on for hearing on this the 27th day of February, 1930, on motion of some of the defendants to dissolve the temporary restraining order heretofore issued and the court after considering the same and being of the opinion that the general demurrer as presented by said defendants to plaintiffs’ petition was well taken and should be sustained, it is, Therefore, Considered, Ordered and Adjudged by the Court that said demurrer as so presented is in all things sustained, and the temporary restraining order heretofore issued is in all things dissolved and set aside, and to the action of the court in sustaining such general demurrer and dissolving the restraining order heretofore issued, the plaintiffs and each of them, in open court duly excepted and gave notice of appeal to the Court of Civil Appeals of the Eighth Supreme Judicial District of Texas, at El Paso, Texas. “It is further ordered by the Court that upon the plaintiffs giving supersedeas bond in the sum of $25,000.00 payable and conditioned as by law required, same to be approved by the Clerk of this Court, the order and judgment as hereinabove entered -is and the same shall be suspended pending the appeal of this cause.” The aforesaid supersedeas bond was executed by the plaintiffs, and the case is now before this court. Opinion. Appellees have presented their motion to dismiss this appeal for the reason that the order above quoted was not an order refusing a temporary injunction, but was merely an order dissolving a temporary restraining order from which no appeal is provided by statute. Appellees contend that the temporary order issued by Hon. Ballard Coldwell, and which was set down for a hearing on January 27, 1930, expired on that date,’ and that the agreement to postpone the hearing did not have the effect of continuing the order in effect. We are of the opinion that the order made by Hon. Ballard Coldwell was merely a temporary restraining order and expired upon the 27th day of January, 1930, and, unless continued in force by an additional order of the court, expired on that date. Ex parte Rains, 113 Tex. 428, 257 S. W. 217; Ex parte Zuccaro, 106 Tex. 197, 163 S. W. 579, Ann. Cas. 1917B, 121; Robinson v. Theis (Tex. Civ. App.) 252 S. W. 249; Cole v. Forto (Tex. Civ. App.) 155 S. W. 350, 351; Beirne v. North Texas Gas Co. (Tex. Civ. App.) 221 S. W. 301. The fact that the parties considered same as being still in effect at the date of the hearing before Hon. Chas. L. Klapproth does not, we think, alter, the situation. If the restraining order ceased to be of force and effect, as a matter of law, on the 27th of January, the belief of the parties and the judge to the contrary would not change it. If we are correct in our conclusion that the order was only a temporary restraining order, and .that it ceased to be of effect on January 27th, then at the time .of the hearing on February 27, 1930, there was nothing in existence for the court -to dissolve, and therefore his action on that date was merely the sustaining of the general demurrer to the petition. It has repeatedly been held in this state that merely sustaining a demurrer to plaintiffs’ petition where the court makes no further order does not constitute a .final judgment. Kuehn v. Kuehn (Tex. Com. App.) 242 S. W. 719, 720; Land & Loan Co. v. Winter, 93 Tex. 560, 57 S. W. 39; Dixon et al. v. Sanderson et al. (Tex. Sup.) 6 S. W. 831. As said in the case of Kuehn v. Kuehn, 'supra: “The ruling of the court would lead logically to the rendition of a final judgment-' of dismissal, but this is not sufficient. There must be a judgment of dismissal before it can be said that there is a final judgment. So long as there wás no final judgment, the cause was pending before the court, and it was within the power of the court to permit defendant in error to amend or to take a nonsuit.” From what has been said the order did not constitute a refusal to grant a temporary injunction. The appeal is therefore dismissed.