Zarb v. Houston

MOURSUND, J. This is an appeal from an order made in vacation by Hon. F. G. Chambliss, judge of the Thirty-Sixth judicial district, granting appellees, J. C. Houston and wife, Mrs. Gertie Houston, Henry King, and wife, Mrs. Nora King, a temporary injunction restraining appellant from taking down and removing and from molesting a windmill erected in the Catholic cemetery at Floresville, and from interfering with appel-lees’ use thereof; also from authorizing, permitting, or consenting for any other persons to bury any one upon two certain lots in said cemetery, alleged to be owned by appel-lees, and from selling or otherwise disposing of said lots. The injunction was granted on June 14, 1914, upon plaintiffs’ first amended original petition. On June 19, 1914, an answer was filed, but the same does not appear to have been called to the attention of the judge who granted the injunction, and ap-pellees have filed a motion to strike same *878 from the record,, which is well taken. The appeal is from the order granting the injunction upon the verified petition alone, and this court cannot consider any answer which was not before the trial court when he made the order appealed from. Houston Electric Co. v. Glen Park Co., 155 S. W. 968; Jeff Chaison Townsite Co. v. McFaddin, 56 Tex. Civ. App. 611, 121 S. W. 717; Young v. Dudney, 140 S. W. 802. We have not been favored by brief or oral argument presenting the contentions relied upon by appellant for a reversal, and upon an examination of the petition we conclude that the allegations show such rights in ap-pellees with respect to the windmill and the lots in said cemetery and such threats on the part of appellant as authorized the granting of the temporary injunction. The judgment is affirmed.