
    E. P. LIPSCOMB & CO. v. ORDONEZ et al.
    (No. 7426.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1925.
    Rehearing Denied June 12, 1925.)
    Appeal and error <&wkey;479(l) — Injunction against enforcing writ of possession to land', which prosecutor of writ had failed to secure in action to try title in which appeal was pending, proper.
    Where purchaser of land at sheriff’s sale, before seeking or obtaining writ of possession under order of sale, had brought suit to try title, and judgment had been for defendant in that suit, which purchaser had appealed,' enforcement of writ of possession subsequently issued to purchaser held properly enjoined pending appeal.
    Appeal from District Court, Bexar County; Robt. W. B. Terrell, Judge.
    Suit by 'Petra G. Ordonez and others against E. P. Lipscomb & Co. Decree for plaintiffs, and defendants appeal.
    Affirmed.
    B. P. Lipsc-omb, of San Antonio, for appellants.
    Dwyer & Russell and 6. Woodson Morris, all of San Antonio, for appellees.
   COBBS, J.

This suit was filed in the Seventy-Third district court by appellees against appellants praying for a temporary writ of injunction to restrain appellants and James Stevens, sheriff of Bexar county, from executing a certain writ of possession.

This case having been heard by the trial court, the following findings of fact and conclusions of law were made and filed, to wit:

“I find that on January 3, 1922, the sheriff of Bexar county, Tex., by virtue of a certain order of sale issued out' of the Seventy-Third district court in said county in favor of the city of San Antonio as plaintiff v. Petra G. Ordonez, defendant on a certain judgment and decree of sale, rendered on the 28th day of November, 1921, conveyed to E. P. Lipscomb & Co., for a consideration of $126.99, the part of lot 1 or lot C, block 5, city block 333, on the north side of Concho street in the city of San Antonio, Bexar county, Tex.
“I further find that on or about the 29th day of February, 1924, E. P. Lipscomb Co., purchasers of said above-described property, filed a suit for trespass to try title in the Forty-Fifth district court of Bexar county, Tex., against the' plaintiffs herein, and that prior thereto had neither asked for nor obtained a writ of possession under the sale made by virtue of a judgment obtained in this court as set out in the first paragraph herein.
. “I further' find that said suit in the Forty-Fifth district court bore the number B35796, and that said causé was tried in said court with E. P. Lipscomb & Co. as plaintiffs, and the plaintiffs herein as defendants on the 24th day of February, 1925, and that the court rendered judgment against É. P. Lipscomb & Co. in their said trespass to try title suit and found in favor of the plaintiffs, in this suit, who were defendants there.
“I further find that after the rendition of said judgment in the Forty-Fifth district court against E. P. Lipscomb & Co., that the said Lipscomb & Co. thep obtained from the clerk of this court a writ of possession out of the cause described in the first • paragraph of these findings.
“I further find that E. P. Lipscomb & Co. have perfected an appeal from the judgment of the forty-fifth district court, and that the same is still pending.
“I further conclude, as a matter of law, that the said E. P. Lipscomb & Co. should be restrained from enforcing the writ of possession described in plaintiffs’ petition herein pending the final determination of the suit brought in the Forty-Fifth district court in trespass to try title against the plaintiffs herein, the judgment there being adverse to the said E. P. Lipscomb & Co. and in favor of the parties who are plaintiffs herein.''
“The attorneys for plaintiffs and defendants having failed to agree -upon a statement of facts in this cause, the court hereby approves the foregoing statement of facts with the following -qualifications:
“That on the trial of said cause it was agreed between counsel for both plaintiffs and defendants and the court that all of the proceedings had in the Forty-Fifth district court in cause No. B35796, styled E. P. Lipscomb & Co. v. Petra Ordonez et al. would be considered in evidence in this trial. This statement of facts does not contain the judgment of the Forty-Fifth district court nor the findings of fact and conclusions of law of the Forty-Fifth district court, and 'for that reason I wish to file herewith my findings of fact and conclusions of law based upon the pleadings in the case and the admissions of counsel on b'oth sides, so the appellate court will have the true statement of facts and the action of this court in the premises.”

Under the circumstances and the facts as disclosed in this case, we do not think the court erred in granting the temporary restraining order, and the judgment is affirmed.

On Motion for Eehearing.

Appellants misapprehend in toto the holding of this court., We .have passed upon no question of law concerning the merits of the controversy between the parties. We quoted the findings of the trial court to show there was no reason why the writ should not issue to stay proceedings until the pending matters could be disposed of. Nothing else was passed upon, except the sole question of the propriety, under the circumstances, of the .court’s well-considered judgment in granting the stay.

The motion for rehearing is overruled. 
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