
    HALEY v. WALKER.
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 23, 1911.)
    Appeal and Error (§ 488) — Supersedeas Bond — Stay.
    A perpetual injunction, granted on final hearing of the merits, which was in part mandatory and in part prohibitive, was stayed by the giving of a supersedeas bond on appeal; Rev. St. 1895, art. 1406, providing that the giving of a supersedeas bond on appeal from a judgment on final hearing shall stay the judgment.
    [Ed. Note. — For other cases, see Appeal and Ei’ror, Cent. Dig. §§ 2277-2278; Dec. Dig. § 488.]
    Action by L. Haley against J. W. Walker. Judgment for plaintiff for an injunction, and defendant appeals.
    Application of plaintiff for contempt proceeding against defendant denied.
    W. Van Sickle, for relator.
    
      
       For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PETICOLAS, C. J.

This was a suit by Haley against Walker in the district court of Brewster county, Tex., in which a preliminary Injunction was issued against Walker. On September 14, 1911, tbe case was beard upon its merits, and said injunction was made permanent and perpetual. Tbe defendant gave notice of appeal in due time, and, before tbe expiration of 20 days from tbe date of said final judgment, filed bis super-sedeas bond for appeal to tbis court.

In tbe final judgment refetred to, tbe said J. W. Walker was perpetually enjoined from taking possession, of any part, or interfering with possession and enjoyment by plaintiff, L. Haley, of certain land in Brewster county, Tex. Said injunction also mandatorily commanded that tbe said Walker, witbin 30 days from tbe date of said judgment, remove tbe fence erected by bim on tbe north line of said land; and it also perpetually enjoined bim from erecting any fence on said land. Tbe amount of tbe supersedeas bond was fixed in tbe judgment by the court at $500, and was filed in accordance therewith witb-in tbe time stated.

In tbis proceeding, tbe relator filed a verified motion, or application, showing that tbe time witbin which tbe respondent was ordered to remove said fence expired on tbe 14th day of October, 1911; that the respondent has refused to remove said fence, has refused to give possession to relator, but is using said land and pasturing goats and cattle thereon, and refuses to give relator possession thereof. Tbe prayer of tbe application is “that tbis court issue such orders and documents as tbe premises require, to tbe end that tbe jurisdiction of tbis court may be enforced and that tbe appellee (relator) may have tbe rights and benefits accruing to him under said judgment and order of tbe district court of Brewster county, Tex., which order and judgment of tbe said district court now is tbe order and judgment of tbis court”

It will be noted that tbis application con-sistsi only of tbe described application, verified by tbe affidavit of tbe relator, a certified copy of tbe judgment of the district court in Brewster county, a certificate of tbe district clerk of that county, showing when tbe court began and when it adjourned, and a certified copy of tbe supersedeas bond given by respondent. There is, perhaps, some question of whether tbe matter can legally be called to our attention in tbis way. We construe it to be an application for proceedings in contempt against respondent, and it may be that we have original and not appellate jurisdiction of such proceedings; but we do not find it necessary to decide this question, as we are denying tbe application and refusing any action by this court, either in contempt proceedings or otherwise, on tbis application.

We are of tbe opinion that, as tbe injunction was perpetuated on final hearing of tbe merits of tbe case, and as it is to some extent mandatory, the supersedeas bond given by tbe respondent stayed tbe injunction, and the same will remain held up until tbe decision of tbe case on tbe appeal.

Tbe relator bases bis contention apparently on the case of the Ft. Worth Driving Club v. Ft. Worth Fair Association, 121 S. W. 214. That was a case in which tbe appellant bad leased of tbe appellee certain grounds, with the provision in tbe lease that no intoxicating liquor should be sold there. Tbe lessee having violated tbis provision, tbe lessor applied to tbe district court for an injunction, and, on preliminary bearing, was granted an injunction, prohibiting the lessee from selling intoxicating liquors on said grounds, from which order tbe lessee, under the act approved April 16, 1907, authorizing appeals from orders either granting or dissolving temporary injunctions (General Laws 1907, p. 206), appealed, giving a super-sedeas bond. Upon tbe continuation of tbe sale of intoxicating liquors, application was made to tbe Court of Civil Appeals at Ft. Worth for contempt proceedings against tbe lessee. In that cause it was held that tbe supersedeas bond did not suspend tbe effect of the injunction, and that tbe lessee was in contempt, and a fine was assessed against it.

AVe think, however, that tbe case mentioned is clearly distinguishable and entirely different from tbe case at bar, in two particulars: First. That that appeal was from a preliminary, or temporary, granting of an injunction; tbis appeal is from a final hearing on tbe merits. Second. That injunction was merely prohibitive; tbis injunction is in its nature mandatory. Judge Conner, who decided that case, held that article 1406 of tbe Revised Statutes of 1895, which provides that upon tbe filing of a supersedeas bond tbe execution of the judgment shall be stayed, did not apply to tbe facts be bad before him, and that certain cases in tbis state, which will hereafter be referred to, did not apply, saying: “Tbe decisions referred to, therefore, are not in necessary conflict with tbe statute quoted; tbe statute evidently having direct reference to final judgments only, and not to preliminary orders.” Again be states: “It can be stated generally that tbe great weight of authority supports the proposition that it is only where tbe preliminary order is mandatory — that is, requires affirmative action, performance of specified things — that an appeal with supersedeas suspends tbe orders.” It seems to us, also, that Judge Conner put bis decision to some extent on the ground that whether or not a preliminary injunction is stayed by an appeal with supersedeas is governed, not by tbe statute, but by tbe general principles and usages of courts of equity.

In tbe case of Williams against Pouns, 48 Tex. 141, which is, we believe, the leading case in this state, it was held that an appeal from a final judgment dissolving injunction, with supersedeas bond, keeps tbe injunction in force. This case is sometimes carelessly said to support the contention that an appeal with supersedeas from a final judgment granting an injunction continues the injunction in force. A moment’s thought, however, will show that the effect of the decision is exactly the opposite — that is to say, the final judgment being one dissolving the injunction, the judgment but for the super-sedeas would terminate the injunction; and to hold that the injunction continues in effect is to hold that the supersedeas continues the status quo. This case was followed in Railway v. Railway, 68 Tex. 98, 2 S. W. 199, and Railway v. Railway, 68 Tex. 98, 3 S. W. 565; both decisions being by the Supreme Court, and as we read the decision by the holding of our Supreme Court in the case of Waters Pierce Oil Company v. State, 106 S. W. 330, where, in determining whether the appointment of a receiver could be made effective pending an appeal with supersedeas, Judge Brown holds that the supersedeas stays the judgment appointing the receiver, quotes the statute referred to, and continues as follows: “This is plain language that cannot be misconstrued, because its meaning is as definite as could be expressed to the effect that when the appellant, or plaintiff in error, complies with the law, the judgment cannot be enforced during the pendency of the appeal.”

It is this particular reasoning that brings us to the result we arrive at in this case. In other words, the statute has said in so many words that on an appeal from a final hearing the giving of a supersedeas bond shall suspend the judgment. It is not, to our minds, a question of whether it is a politic rule of law, or whether to hold that the judgment was not suspended might be more effective in some cases, but simply a question of what is the law.

The case at bar was a final hearing on the merits; it was regularly appealed, with a supersedeas bond; the judgment granted the relator a mandatory injunction and, to some extent, a prohibitive injunction; and, with the statute plainly providing that on an appeal from a final hearing on the merits the judgment shall be suspended, we are unable to do anything but hold that the judgment" is suspended.

It follows that if relator’s judgment, granting him an injunction, is suspended pending respondent’s appeal, the injunction is stayed ; therefore the respondent’s failure to comply with the orders contained in the judgment and by the injunction was not viola-tive thereof, because the same was stayed pending his appeal.

It is therefore ordered that the application of the relator be overruled and denied, and that he pay all costs of this proceeding.

HIGGINS, J.

I concur fully in the conclusion reached by the Chief Justice that the relator’s motion should be denied, but reach my conclusion by somewhat different process of reasoning. I shall state very briefly the grounds upon which I base my conclusion.

The relator’s motion states that a temporary injunction was issued on August 11, 3911, but the exact nature and scope thereof is not disclosed. It will be noted, too, that this contempt proceeding is based upon an alleged violation of the provisions of the final decree, which was entered on September 14, 1911, after hearing upon the merits.

Under the decisions in Williams v. Pouns, 48 Tex. 141, Railway Co. v. Railway Co., 68 Tex. 106, 2 S. W. 199, 3 S. W. 564, Moore v. Moore, 59 Tex. 54, Lee v. Broocks, 51 Tex. Civ. App. 344, 111 S. W. 778, it was held that the filing of supersedeas bond would suspend a final decree, dissolving.temporary injunction theretofore issued, and the effect of such suspension would be to continue in effect the temporary injunction pending the appeal.

The same rule is recognized in Railway Co. v. Railway Co., 68 Tex. 163, 7 S. W. 381, and Riggins v. Thompson, 96 Tex. 154, 71 S. W. 14; but in those cases the temporary injunction by its terms .was effective and operative only for a fixed and limited period, and it was held that an appeal by supersedeas from a final judgment dissolving the injunction would not continue the temporary order in effect, because the fixed period had expired, and the order was not, by its own terms, to be effective after such expiration.

The opinion of Judge Conner, in Ft. Worth Driving Club v. Ft. Worth Fair Association, 121 S. W. 214, in no wise conflicts with the authorities cited. The effect of this decision, concisely stated, is that Acts of 1907, p. 206, gives a right of appeal from interlocutory orders granting or dissolving temporary injunctions, but that such orders are not suspended pending the appeal.

In the cases herein first cited, the temporary injunction was dissolved upon final hearing; whereas, in the instant case, relator obtained a perpetual injunction. In my opinion, the fact that relator obtained •a perpetual injunction upon the final hearing in no wise affects the application of the rule established in Williams v. Pouns, and other cases cited. It might be contended that the rule would not apply, because the temporary injunction was merged in the perpetual injunction given by the final decree; but, under the authorities cited, the supersedeas bond entirely suspended the final decree, thus operating as a suspension of the merger, which would leave the temporary injunction in force, unless by its terms it would fall within the rule announced in Railway Co. v. Railway Co., 68 Tex. 163, 7 S. W. 381, and Riggins v. Thompson, supra.

Relator’s motion herein being based wholly upon an alleged violation of the perpetual injunction granted by the final decree, from which decree respondent has appealed and filed an approved supersedeas bond, it follows that his motion should he overruled and denied.

McKENZIE, J.

I concur in the reasoning of the Chief Justice, believing that the temporary writ would merge in the final judgment, and that the supersedeas bond would suspend both.  