Ford v. State , 209 S.W. 490 ( 1919 )

While I concur in most that is said in the opinion of Mr. Justice JENKINS and in the result announced in his opinion, I do not concur in his view to the effect that the preliminary injunction issued by the district judge s still in force; and, if prepared to make that ruling, I would be inclined to hold that the state's remedy would be a proceeding asking to have appellant punished for contempt, and not the issuance of another injunction.

The fiat of the district judge upon which the preliminary injunction was issued reads as follows:

"In Chambers, Oct. 25, 1918. On showing made, plaintiff's application for a temporary injunction granted as prayed for, and the clerk of this court is hereby directed to forthwith issue a temporary injunction enjoining and restraining the defendant herein as prayed for until the further orders of this court herein made and entered."

The temporary writ of injunction followed the fiat of the judge, and enjoined and restrained appellant from doing the things therein referred to until further ordered by the court. The judgment rendered upon the final trial was a further order of that court, and when it was rendered, in my opinion, the temporary injunction ceased to exist by force of its own terms; and therefore the state has no right to have appellant punished for violating that writ. The trial judge had the power to limit the life of the temporary writ of injunction, and I believe he intended to do so when he placed in his fiat the language, "until the further orders of this court herein made and entered"; and, when the contingency therein referred to arose, the temporary writ of injunction expired by its own terms.

Also, it is immaterial that the contingency referred to consisted of a final judgment perpetually restraining appellant from doing the things complained of, and it is also immaterial that an appeal has been perfected from that judgment. The rendition of that judgment was a further order of that court relating to the question of injunction, and, being a further order, as soon as it was made the temporary writ of injunction expired by its own terms and in accordance with the fiat of the district judge.

If the preliminary injunction is still in force, the appeal vests in this court the power to punish appellant for its violation, and, if that be its status, the state should have inaugurated a contempt proceeding, instead of one asking to have another writ of injunction issued. G., C. S. F. Ry. Co. v. F. W. N. O. Ry., 68 Tex. 98, 2 S.W. 199,3 S.W. 564. But, as stated above, I do not believe that perfecting the appeal has kept the temporary injunction alive, because and for the reason that before the appeal was perfected it had ceased to exist.

Upon the other questions involved in the motion, I concur in and approve the opinion prepared by Mr. Justice JENKINS.