
    CORPUS CHRISTI BOOK & STATIONERY CO. v. CORPUS CHRISTI NAT. BANK.
    
    (No. 8106.)
    Court of Civil Appeals of Texas. San Antonio.
    July 27, 1928.
    1. Appeal and error <S=>755 — On appeal in injunction oases, neither party is required to file briefs.
    On appeal in injunction cases, neither party is required to file briefs, but courts are appreciative when briefs are filed.
    2. Injunction <®=>S — Mandatory injunction held not proper remedy to recover possession of property held over by solvent tenant, without allegation showing irreparable injury (Rev. St. 1925, art. 4642)..
    Where landlord sought to recover possession of property by means of mandatory injunction, on sworn allegation that tenant was holding over after expiration of lease, but not alleging facts showing irreparable damage or injury, it appearing that tenant was solvent and able to respond in legal damages, held, that injunction was not proper remedy, under Rev. St. 1925, art. 4642.
    3. Appeal and error <§=>477 — Appellate court held to have power to stay mandatory injunction pending hearing of appeal to protect its jurisdiction.
    Where mandatory injunction was granted to recover possession of property held over by tenant, and on appeal tenant applied for order staying injunction, on ground that enforcement of injunction would render ease on appeal moot before hearing thereof on merits, pendency of case on appeal gave appellate court power to stay injunction to protect its jurisdiction.
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Suit by the Corpus Christi National Bank against the Corpus Christi Book & Stationery Company for a mandatory injunction. Injunction granted, and the defendant appeals, applying for an order staying a temporary mandatory injunction pending the appeal.
    Injunction stayed pending appeal.
    McCampbell & Holt, of Corpus Christi, for appellant.
    Kleberg & North and Boone & Savage, all of Corpus Christi, for appellee.
    
      
      Rehearing denied July 31, 1928.
    
   COBBS, J.

Appellee, the landlord, filed this suit against appellant, the tenant, to recover the possession of the property by means of a mandatory injunction, alleging the appellant was holding over after the expiration of the lease to its damages. The recovery is sought by means of a sworn petition, asking for a mandatory injunction to require appellant to surrender possession of the premises of which appellant is in possession, and which were formerly and until May 31, 1928, held by it under lease from appellee.

This pleading, so far as set out in the brief, shows no equitable cause of action. In this connection we have no assistance.from appellee, who filed no written brief or citation of authorities. However, in injunction cases, neither party is required to file briefs; but the courts are very appreciative whén they are filed, for many reasons besides the assistance they give.

The sworn allegation shows that appellant, as a tenant, has occupied the premises for a number of years under a lease and renewals thereof, from time to time, which expired May 31, 1928, and that appellant has been holding possession thereof since that time against appellee’s will. The petition is lengthy, and undertakes to set out in a very general way the claimed damages resulting from the action of appellant in withholding the premises after the termination of the lease, and fails to show any grounds for relief that cannot be recovered in an action at law.

It is urged with much show of truth that, unless an order is issued by this court staying the injunction, the case on appeal will be moot before it can be heard on its merits, and thus possession be kept by appellant. Article 4642 does not provide a choice of remedies for litigants, but provides a remedy to cover injuries for which there is not a clear, full, and adequate relief at law. We do not think any case can be found where a mandatory injunction has been granted or used to eject a holdover tenant, unless there be alleged or shown some proof of irreparable damage done or threatened to be done.

There is an entire absence of allegation showing irreparable damage or injury that appellee will suffer that cannot be recovered in an action at law. The trouble in this case is that there is no sufficient allegation that the threatened injury or damage will be irreparable, if the appellant does not surrender immediate possession. The measure of damages in an action at law against a holdover tenant is stated in Curtiss Aero & M. Corp. v. Haymakers Warehousing Corp. (Tex. Civ. App.) 264 S. W. 329.

If the remedies afforded appellee by law are sufficient to compensate, and they are, then appellee is required to go to the common-law side of the docket for its relief. In other words, if the arms of the law are too short to administer the adequate relief, then an appeal to a court of equity or of conscience may be made, because equity follows and aids the law. There is a broad distinction to be maintained, for to stagger into the wrong jurisdiction might be met with an abrupt dismissal. In the ease of Hill v. Brown, 237 S. W. 252, a landlord, Brown, sought to eject her tenant, Hill, from premises of which the tenant was in possession, and the court, the Commission of Appeals, says:

“The question before us is: Did the district “court err in issuing the injunction, the plaintiffs having an adequate and clear legal remedy? The case presented” to- us “is one where a tenant holds over after the expiration of the term, and the issuance of the mandatory writ was erroneous, if the plaintiffs had their legal remedy. * ⅞ * In the case at bar there were two legal remedies, which the plaintiff could have” exercised “in protecting their rights: (1) The action of forcible detainer; and (2) the action of trespass to try title, or, as in this case, a suit” for “possession, with the ancillary writ of sequestration. * * * We do not think it was the intention of the Legislature in the enactment of the injunction statutes [supra] to simply provide a choice of remedies for litigants, but that the intention was to -provide a remedy to cover those injuries for which there was not clear, full, and adequate relief at law. Nor did our Supreme Court, intend to abrogate the distinction between law and equity in the application of the remedies provided under each system, but only intended to furnish a complete safeguard under the equitable jurisdiction of our courts for the protection of parties invoking same, who show that they are ‘entitled to same.’ ”

In the case of Bank v. Folsom (Tex. Civ. App.) 247 S. W. 591, the owner of an office building sought, by means of a mandatory injunction, to eject its tenant, whose lease had expired and who refused to surrender possession. The court said:

“At the time of the issuance of the writ of injunction, appellant had a clear, legal right to the use and possession of the leased offices, and it was clearly appellee’s legal duty to surrender [same], and his failure to do so is indefensible at law. It does not necessarily follow, however, that appellant can secure its rights by appealing to a court of equity for injunctive relief. It can only do so if it has not a plain and adequate remedy at law, which is as efficient as the remedy in equity. * * * It is likewise the settled policy of the law of this state that an owner out of possession of premises, even if held by a mere trespasser, cannot resort to a court of equity and by use of its injunctive powers have possession taken from such wrongdoer and transferred to the owner, ⅜ * ⅜ the courts holding that there is available to the owner a plain, adequate, legal remedy, and as efficient to the ends of justice as the remedy in equity.”

To like effect, see Mercer v. Fitzhugh (Tex. Civ. App.) 261 S. W. 819.

In the case of Moore v. Norton, 215 S. W. 373, a case decided by this court, a landlord sought to eject his tenant by means of a mandatory injunction, alleging among other equities the inefficiency of the legal remedies, and further alleging that the premises had been leased and failure to deliver would involve the landlord in litigation and possible damages. The court said:

“The appellants were not entitled to a mandatory injunction, requiring appellees to vacate premises of which peaceable possession is held by them. In such cases the available remedies provided by law must be followed, because equity will not lend its aid, by means of a temporary [mandatory] injunction, granting the relief prayed for, to obtain the possession of the property, the effect of which would be virtually to decide the entire’case.” Butler v. Borroum (Tex. Civ. App.) 218 S. W. 1115.

In the case of Hudspeth v. Gugenheim, 278 S. W. 952, this court held, opinion by Mr. Justice Smith, that the tenant, who was insolvent, was properly ejected by a landlord, through 'the use of a mandatory injunction, because irreparable injury was . shown and no legal remedy was adequate, and that the landlord stood in the attitude of suffering irreparable loss if the injunction was not granted. No such situation is shown here, and it is admitted that the appellant is solvent and able to respond in legal damages. That being true, no function of a court of equity is required to compensate the appellee for any damages suffered by him.

Appellant complains, and rightfully so, at the order of the court “that the said injunction ordered issued herein should not be suspended during such appeal, and it is therefore ordered that the appeal shall not suspend this order or the operation of said injunction, but the same shall remain in full force and effect during said appeal, and defendant shall be required to obey the same and to vacate said premises within 10 days from this date,” which date was July 18, 1928. This case pending here on appeal gives us the power to stay said injunction to protect our jurisdiction, and this will now be done. Genitempo v. Anderson (Tex. Civ. App.) 245 S. W. 270.

Accordingly, the temporary mandatory injunction granted by the J trial court will be stayed pending the appeal therefrom. 
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