Fort Worth Street Railway Co. v. Rosedale Street Railway Co. , 68 Tex. 163 ( 1887 )

Stayton, Associate Justice.

A controversy having arisen between the Fort Worth Street Railway Company and the Rose-dale Street Railway Company as to their respective rights to construct and operate a street railway in the centre of Houston street in the city of Fort Worth, and as to their rights in some other streets, on or before the nineteenth day of August, 1884, both corporations had applied for writs oí injunction, the one asking that the other be restrained from constructing and operating its railway on the disputed ground, and to restrain the interference by the one with the work of the other then in progress.

The parties, on the day named, entered into an agreement that the applications for injunction then before the judge should be withdrawn, and that a suit should be brought by the Rosedale Company within thirty days, to have decided the questions at issue between them. By that agreement arrangements were made by which each company might complete the work commenced by it on the street, after which they were both to- cease work until their rights were adjudicated in the contemplated suit. The agreement also provided for the payment by the successful party for such work as might be done by the losing party.

The contemplated suit was instituted by the Rosedale Company on September 9, 1884. On September 17, 1884, applications for injunction, made by both companies, were pending, and on that day a writ was directed to issue restraining the Rosedale Company from doing any more work on Houston street. After reciting the fact that both companies were seeking injunctions, the order of the court is as follows: “And that for good and sufficient reasons, to wit, the agreement of* the plaintiff and defendant, a full hearing herein is postponed until the twenty-sixth instant. It is, therefore, considered and ordered that this cause be set for hearing on said twenty-sixth instant; and that the injunction now granted the Fort Worth company remain in force only until the hearing of this cause, is had in accordance with the terms and stipulations of said agreement, between the defendant and plaintiff, dated, as above stated, August 19, 1884.”

The cause was tried on May 16, 1885, and resulted in a judgment in favor of the Rosedale company, in which its right to occupy the parts of streets claimed by it was established, and the rights of both companies under the agreement before referred to were adjusted. The restraining order issued in favor of the Fort Worth company was dissolved by the decree and it was perpetually enjoined from interfering in any manner with the Rosedale company’s use of the parts of streets which it claimed the right to use. From that judgment the Fort Worth company prosecuted an.appeal, having executed a supersedeas bond.

This proceeding is an application by the Fort Worth company to require the Rosedale company, another corporation, and several individuals, to show cause why they should not be held in contempt and punished by this court for alleged violation of the restraining order granted in favor of the Fort Worth company, and before referred to, which it is claimed was continued in force by the appeal. The grounds on which the violation is claimed need not be stated.

It is urged that the appeal has the effect to continue in force the restraining order of September 17, 1884, and if this is not true it is- unnecessary to consider the other questions involved. In Williams v. Pouns, 48 Texas, 141, it was held that an injunction in full force when a final judgment dissolving it was entered, remained in force while the judgment was suspended by an appeal under a supersedeas bond. This ruling was followed in the case of Railway Company v. Railway Company, 2 Southwestern Reporter, 199. Is such a case now presented?

The restraining ordef and writ that issued under it fixed a period at which it should cease to be operative. It shall “remain in force only until the hearing of this cause” was the judicial deter-, mination which brought it into existence. It could live so long and no longer, unless by some subsequent judicial action it was revivified. It required no decree to dissolve it when the fact transpired which limited its duration; and that a formal order was entered dissolving it in no way affects the question before us. Appeals under supersedeas bonds suspend judgments pending the appeal, and orders made during the pendency of an action, though interlocutory in character, may, when they affect' the merits of a cause, be revised after a final judgment.

In the matter before us, the trial court refused to grant a restraining writ to continue in force until the court should after-wards judicially determine that it should be vacated, but gave a writ to determine at a certain time. On the appeal prosecuted, this court would not revise the action of the district court in this respect, and an order which can not be revised will not be affected by an appeal.

Opinion delivered April 22, 1887.

The court below evidently conceived that, on the hearing of the case, it could be better ascertained whether the Fort Worth Company would be entitled to a further restraining order or writ, and had full power on that hearing to award such relief or to deny it. If it erred in denying it on 'the hearing, that could be revised on appeal; but by an appeal a restraining order or writ which had ceased to be operative by its own terms, could not be brought into existence. As was said in Dair v. Ely, L. R., 3 Equity, 509: “It will be open, however, for the defendant, when he is charged with having created a breach of the order, to show that he has complied with it so long as it was in force, but that the order carried on its face the period of its duration, and that, as- that period had expired, there is no order which he could be guilty of infringing.”

The rule that an appeal from a final judgment dissolving an injunction will continue it in force in cases in which the only relief sought is an injunction, may often operate harshly, if not oppressively; and we are of the opinion that it ought not to be so extended as to reach chses other than those to which fir has been applied in this State.

It not appearing that the respondents have violated any existing order or writ, the rule to show cause will be discharged and the application dismissed, the respondents to recover from the complainant all costs in this behalf.

It is so ordered.

Rule discharged and application dismissed.