
    HOUSTON OIL CO. OF TEXAS v. VILLAGE MILLS CO.
    (No. 2963.)
    (Supreme Court of Texas.
    April 17, 1918.)
    1. Abatement and Revival <S=»16 — Penden-cy op Other Action-^Identity of Issues.
    Where plaintiff had previously sued defendant to determine the title to certain land, and an appeal therein from a judgment for plaintiff was pending, a court of another district had jurisdiction to restrain defendant from cutting timber from such lands in view of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 4643, providing for injunctions pending action.
    2. Injunction tS=o52 — Protection Pending Action — Discretion.
    Where a petition asserted a bona fide claim of title to the lands, possession for more than ten years, judgment, in an action pending on appeal, in petitioner’s favor and against defendant for the lands and the threat of defendant to cut the valuable timber from the lands, the granting of an injunction was not an abuse of discretion.
    3. Courts <@=>247(1) — Appellate Jurisdiction — Supreme Court.
    The Supreme Court has jurisdiction to grant writs of error in appeals from interlocutory orders granting injunctions under Vernon’s Sayles’ Ann. Civ. St. 1914, arts. 4644, 4045, 4646. such not being of that class of cases in which the determination of the Courts of Civil Appeals is final under article 1521 as amended in 1913.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Suit for injunction by the Houston Oil Company of Texas against the Village Mills Company. From an order granting a writ in chambers without a hearing, defendant appealed to the Court of Civil Appeals (191 S. W. 723), where the order was reversed, and the injunction dissolved. Plaintiff brings error.
    Judgment of Court of Civil Appeals reversed, and order of district court affirmed.
    See, also, 186 S. W. 785.
    H. O. Head, of Sherman, and Kennerly, Williams, Lee & Hill and Oswald S. Parker, all of Houston, for plaintiff in error. W. D. Gordon, H. G. Russell, Thos. J. Baten, H. M. Whitaker, and E. E. Easterling, all of Beaumont, for defendant in error.
   PHILLIPS, C. J.

The Houston Oil Company of Texas filed in the District Court of Hardin County in the Ninth District an action against the Village Mills Company for a certain league of land in that county. It was successful upon the trial and obtained judgment for the land. The defendant appealed. The appeal is as yet undetermined. Following the appeal, the Oil Company presented to Judge Llewellyn, Judge of the District Court of Hardin County in the Seventy-Fifth District its petition for an injunction against the same defendant to restrain it from cutting the timber from the land and interfering with the plaintiff’s possession pending the final decision of the suit for the land. The injunction was granted in chambers without a hearing. On the defendant’s appeal the order was reversed and the injunction dissolved by the honorable Court of Civil Appeals for the Ninth District.

It is urged by the defendant in error that the Judge of the Seventy-Fifth District Court was without jurisdiction to issue the injunction because of the jurisdiction of the Ninth District Court over the suit for the land and the pendency of the appeal from the judgment there rendered. There is, in our opinion, no doubt as to the power of the District Judge to grant the injunction. This is not a suit for the land, nor does it at all involve the title to the land. The subject-matter is distinct. It is merely a proceeding to prevent waste upon the land and to preserve its condition pending the final determination of the rights of the parties by restraining the defendant from appropriating to itself at an intermediate stage of the controversy that which according to the allegations of the petition chiefly gives it value. Only a provisional injunction of spch duration was sought or granted. That it works no invasion of the jurisdiction of the Ninth District Court over the action for the land and will not interfere with the full exercise of the Court of Civil Appeals’ power over the appeal, is apparent. The statute (Article 4643) declares that the Judges of the District Courts may grant writs of injunction:

“Where, pending litigation, it shall be made to appear that a party doing some act respecting the subject of litigation, or threatens or is about to do some act or is procuring or suffering the same to be done in violation of- the rights of the applicant, which act would tend to render judgment ineffectual.”

This- provision contemplates such situations as that here presented, and plainly conferred upon the District Judge the power exercised.

The petition for the injunction clearly alleged the plaintiff’s assertion in good faith of its claim of title to the land; its actual possession of it for more than ten years ; the judgment for the land rendered in its favor against the defendant; the threat of the defendant to cut the timber from the land, notwithstanding the adverse judgment and the absence of any final adjudication that it was entitled to it; and that it was the timber which chiefly gave the land' its value. Such being the allegations, it canno.t be said, as a matter of law, that there was any abuse of discretion on the part of the judge in issuing the injunction. The facts stated were sufficient to create an independent equity in favor of the plaintiff entitling it to the aid of a court to prevent the property in controversy being rendered valueless to it through the acts of its adversary, regardless of the superiority of its rights if its judgment should be finally affirmed. Whitworth v. Barnes, 168 Mo. App. 269, 153 S. W. 538; People’s Traction Company v. Central Passenger Railway Company, 67 N. J. Eq. 370, 58 Atl. 597. With the timber constituting the real subject-matter of the original suit, tlie claim of the defendant directly challenged in the way the law provides, and the suit not yet concluded, it is difficult to perceive how in justice the defendant was warranted in taking the timber to itself as though its ownership were undisputed. A legal action for property prosecuted in good faith would present a strange irony if the law permitted one of the parties during its penden-cy to destroy the property’s value to the rival claimant by appropriating to himself that which made it valuable.

Since this was not an action for the land and did not involve the title to the land, to entitle the plaintiff to the character of injunction sought it was not necessary for it to here show that it had the better title. Its claim to the land, the prosecution of its suit in good faith, and the judgment in its favor in the trial court warranted, particularly in view of our statute, the granting of such relief as would prevent an ultimate judgment in its favor being rendered ineffectual. In such situations equity is not immediately concerned with the superiority of the rival claims, and does not wait upon the adjudication of that question. Its province is to preserve an even balance of right between the parties until that is settled by restraining at the hands of either any action which in the end would make the property valueless in the hands of the successful claimant

We have not failed to consider the defendant' in error’s motion to dismiss the cause. The ground of the motion is that the Supreme Court is without jurisdiction to grant a writ of error in appeals from interlocutory orders granting, refusing, or dissolving injunctions — which we have heretofore held is possessed by the court under Articles 4644, 4645 and 4646 where the cause is not of that class of which the jurisdiction of the Courts of Civil Appeals is made final by Article 1591 — because, it is urged, these articles were in effect repealed by the Amendment of 1913 to Article 1521, defining the general jurisdiction of the Supreme Court. As was announced during the argument, we have heretofore determined this question in assuming the jurisdiction here disputed by our action upon numerous applications for writs of error in causes of the class of the present one since amended Article 1521 became effective. The purpose of Articles 4644, 4645 and 4646 was to confer a special jurisdiction upon the Supreme Court in a particular proceeding. They are particular statutes and relate solely to a certain kind of appeals. Amended Article 1521 — since amended by the Act of 1917 (Acts 35th Leg. e. 75, § 1 [Vernon’s Ann. Civ. St Supp. 1918, Art. 1521]) — was a general statute and was expressed in only affirmative terms. It contained no negative provisions. Its purpose was only to define the general jurisdiction of the Supreme Court over causes determined in the Courts of Civil Appeals. It evinced no intention of impairing the special jurisdiction conferred upon the Supreme Court under Articles 4644, 4645 and 4646. There was no absolute repugnancy between it and Articles 4644, 4645 and 4646 since under its terms it was possible for it to have, and it did have, an extensive operation beyond the limited scope of these articles. Under familiar rules there was no implied repeal. Sutherland on Statutory Construction, §§ 274-278; Cole v. State, 106 Tex. 472, 170 S. W. 1036; State v. McCardy, 62 Minn. 509, 64 N. W. 1133.

The judgment of the Court of Civil Appeals is reversed and the order of the District Judge is affirmed. 
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