Janelli v. Janelli , 227 S.W.2d 889 ( 1950 )

CRAMER, Justice.

This cause is again before us under an opinion of the Supreme Court on an application for mandamus filed by 'appellant to require us to certify certain questions set forth in such Supreme Court opinion, Janelli v. Bond, 225 S.W.2d 824. Though the application was denied, the Court states that we have not passed on the merits of the appeal from order granting the injunction, and that it was justified in assuming that we will pass formally on them as a result of its opinion.

In obedience to such suggestion, the former order; in so- far as it dismissed the appeal from the granting of the temporary injunction, will be set'aside; A majority of the court is of the opinion that there was a fact issue before the court as to a marriage, which the trial court, in granting the injunction, found against the appellant. See our former opinion, Tex.Civ.App., 220 S.W.2d 255. And that the court did not abuse his .discretion in finding, such fact for the purpose of granting injunction in favor of appellee. . Neither do we find any abuse of discretion by the trial court in the issuance of the temporary injunction. The pleading and the proof by appellee are to the effect that she might, be endangered in her property rights during the pendency of the suit if the injunction is not issued. Our Supreme Court in Wright v. Wright, 3 Tex. 168, at page 175, refers to what is now Art. 4635, Vernon’s Civ.St., and holds: .“These and other provisions of the statute show clearly that, in the contemplation of the legislature, the rights of the wife might be endangered during the progress of the suit; and full powers are vested in the court to make all other orders and issue such writs as may be necessary for their conversation. The terms are emphatic,, that the wife may require an injunction restraining the husband from the disposition of any part of the property in any manner, and it would seem to be imperative on the courts to issue such writ whenever it may be demanded by the wife. From the language employed, if construed literally, it would appear that but little discretion can be exercised in determining upon the application, and that the writ, when desired, would be one of right, and would issue almost as. a matter of course.”

The order of the trial court granting the injunction is therefore affirmed.

YOUNG, J., concurs. BOND, C. J., dissents.