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 *2 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.
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
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
APPENDIX A
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
------~ " , ) <L._
~-,-- . - ;~
{;. r 1 CAUSE No. CC-lS-0S0lS-C
JOSEPH KEMP, AS ADMINISTRATOR § IN THE COUNTY COURT AT LAW OF THE ESTATE OF LOU BERTHA § BROOKS, DECEASED § Plaintiff § § NO. THREE OF v. § § DANIEL PEARSON, SHARUNDA KING, § JASTASIA KING AND ALL OTHER § OCCUPANTS § Defendants § DALLAS COUNTY, TEXAS
JUDGMENT -.~ I
~f· • '. icc1Jfailed to appear, Defendant ._ Jastasia --- -. King..:>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
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\ 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
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
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
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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
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.
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