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(248 S.W.) offensive and injurious to the health and com- ja perpetual injunction upon a hearing had at fort of plaintiffs.” It was alleged in the pe- the term in which the suit was filed, and tition that the defendants were operating the when the defendants did not waive their plant in such a way that it emitted obnoxious right to have the cause go over to the next gases, fumes, odors, etc., which penetrated term of the court. In Riggins v. Thompson, the homes of certain citizens of Fort Worth 96 Tex, 154, 159, 71 S. W. 14, 16, the Supreme and injured their health and interfered with Court, speaking through Chief Justice Gaines, their comfort, etc. The petition was filed in said: the Sixty-Seventh district court September

"The defendants were not under the law re18, 1922. Upon its presentation to the judge quired to answer at that time the petition upon of said court, the judge indorsed thereon the its merits, unless served ten clear days before following order:

the beginning of the term. They could not have "The clerk will issue a notice to defendant been called upon to answer the case and go to instanter to appear in this court at the hour that the judge did not attempt to fix a time in

trial at that term. It is obvious, therefore, of 9 o'clock a. m. Saturday morning September 23, 1022, then and there to show cause why which they were required to answer as to the the writ of injunction prayed for herein by whole case, but merely to name a date at which plaintiff should not be granted as prayed for." they should appear and show cause why an in

junction, which was to operate until the final On said September 23d, the plaintiff and termination of the suit, should not be granted.” defendant appeared in court, and the hear

(1-5] So, in this case, the defendants were ing was postponed to September 26th. The not required to answer the petition and stand defendants on September 23d filed their an- trial on the case on its merits. The most that swer, and on September 26th filed a motion the trial court or the judge thereof could do to postpone the hearing until the next regu. was to grant a temporary restraining order, lar term of the court, which began the first pending the final trial on the merits, in the Monday in December, following. This mo

absence of a waiver by defendants of the tion was overruled. On September 27th, the

time allowed them under the law to answer plaintiff filed its first amended original pe- to the merits. That they did not waive this tition, in which the city of Fort Worth ap right is shown by their motion to postpone peared as the only plaintiff, the citizens who the hearing till next term. The fact that the had joined in the original petition as plain-defendants filed an answer, even a few days tiffs having been dismissed, in response to before the motion for postponement was filed, exceptions urged by defendants that their would not, alone, in our opinion, constitute a presence in the original petition constituted a waiver, because largely the same pleadings misjoinder of parties plaintiff. Upon special by defendants would have been proper in issues submitted, the jury found that the answer to a petition to secure a temporary operation of the defendants' plant in the man injunction or restraining order as would have ner in which it had been operated was inju- been required against a petition seeking a rious to persons of ordinary sensibilities, hab

perpetual injunction. Nor can we reform the its, and tastes residing in the part of the city judgment rendered by the trial court by makwhere the plant was located. Whereupon, ing the judgment a restraining order instead the court entered judgment granting plain of a perpetual or permanent injunction. tiff a permanent injunction

Plaintiff did not pray for a temporary injunc"restraining defendants from maintaining ortion, and it has been held that, where the operating their acid plant in such a manner as petition only prays for a perpetual injuncto cause noxious and unpleasant air, odor, gas- tion, the court is not authorized to grant a es, and vapors to be discharged from said plant temporary injunction. In Hoskins et al. v. in such a manner as to interfere with citizens Cauble (Tex. Civ. App.) 198 S. W. 629, and and inhabitants of the city of Fort Worth, who travel the above-named public streets, high- Boyd v. Dudgeon (Tex, Civ. App.) 192 S. W. ways, alleys, and sidewalks. And the said de- 262, it is held that a temporary writ or refendants and each of them are hereby re- straining order will not be granted unless strained from maintaining or operating their specially prayed for in the bill. While in the said plant in such manner as to cause gases, Hoskins Case, supra, it is conceded that there vapors, and odors to be discharged of such a is a conflict of decisions as to this rule of nature as will be injurious to the health or comfort of citizens and inhabitants of the city have followed the more restricted rule. It

practice, yet it seems that our Texas courts of Fort Worth in attending public worship or schools located in said section of the city above has been suggested that in Riggins v. Thompdescribed."

son, supra, the Supreme Court held that,

where the trial judge or court granted an inFrom this judgment the defendants have junction permanent in its character, the apappealed. Only one assignment need be con pellate court could reform the judgment and sidered, that the trial court erred in overrul make the injunction temporary in its effect. Ing defendants' motion to postpone the hear. But a careful reading of Riggins v. Thomping, upon the merits of the case, until the son will show that the Supreme Court did next term of the court, and erred in granting not so hold.

The plaintiff's first amended original peti "A judgment is the law's last word in a jution has the following prayer:

dicial controversy. It may therefore be de

fined as the final consideration and determina"Wherefore plaintiff prays the court that a tion of a court of competent jurisdiction upon writ of injunction issue herein restraining the the matters submitted to it, in an action or defendants and each of them from maintaining

proceeding." and operating said acid plant for the purpose of reclaiming sulphuric acid or carrying on any [7,8] A purported judgment which leaves other trade, business, or occupation offensive undecided a question or issue essential to the and injurious to the health and comfort of the determination of the controversy between the said citizens and the inhabitants of this city residing in the vicinity and the general community parties is bad for vagueness and uncertainty. thereabout, or interfering with the use of any "Sometimes several issues of law and of fact of the public places or hereinbefore men- are presented for the consideration of the tioned and restraining said defendants and each court in the same suit or proceeding. In such of them from so using said premises, place, case there can be no judgment from which an buildings, and plant or any part thereof for the appeal can be taken while it remains necessary purposes aforesaid and from further continuing for the court to determine some issue of law the conduct of said business in the manner com or of fact.” Freeman on Judgments, p. 21, plained of. Defendants having already appear- | $ 20. ed and answered herein, plaintiff prays that on final hearing hereof it have its judgment that [9] In order to enforce the judgment heresaid injunction be made perpetual, for costs of in rendered, it would be necessary for the suit and for such other and further relief, spe- court to find in a separate hearing that the cial and general, at law and in equity, as to defendants were maintaining and operating which the plaintiff may show itself to be justly

their plant in such a manner,entitled.”

"as to cause noxious and unpleasant air, odor, It will be noted that there is no special gases, and vapors to be discharged from the prayer for a temporary restraining order, said plant in such manner as to interfere with and, under the authorities cited, the absence citizens and inhabitants of the city of Fort of a special prayer for temporary restraint Worth who travel the above named public would make the petition insutficient to sus- streets, highways, alleys, and sidewalks.” tain an order and judgment for a temporary

In other words, the trial court, on a hearinjunction. Moreover, counsel for the plaintiff, -in oral argument before this court, ad- ing of a motion for contempt for an alleged mitted that its prayer was not for a tempo-hear largely the same character of evidence

violation of this injunction, would have to rary restraining order, but for a perpetual injunction. Hence, we conclude that we cannot as was required to sustain the injunction in reform the judgment by making the injunc- the first instance. The judgment liere rendertion temporary instead of perpetual, and af. ed does not restrain the defendants from opfirm it. Moreover, some of us think that the it at the time the petition was filed, or from

erating the plant as they had been operating judginent rendered is too indefinite to operate as a final judgment. Two paragraphs of the operating it in any other definite or fixed way. judgment will explain what we mean by the that it should be certain and definite, or be

It is necessary to the validity of a judgment judgment being too indefinite.

The para

capable of being made so by proper construcgraphs read:

tion; and to this end it should state clearly "And the said defendants and each of them the time of its rendition, the matter in disare restrained from maintaining or operating pute, and particularly the result of the action their said plant in such a manner as to cause with the relief granted, so that what the noxious and unpleasant air, odor, gases, and vapors to be discharged from the said plant in judgment gives, orders, or decides “should be such manner as to interfere with citizens and clearly apparent.” 23 Cyc. p. 671, $ 8. Uninhabitants of the city of Fort Worth who trav. der this section is cited a number of decisions, el the above-named public streets, highways, including some from this state. alleys, and sidewalks.

In Gregory v. Blanchard, 98 Cal. 311, 33 "And the said defendants and each of them Pac. 199, the California Supreme Court held are hereby restrained from maintaining or op- that a provision in a judgment requiring deerating their said plant in such manner, as to fendant “to deliver the possession of said cause gases, vapors, and odors to be discharged of such a nature as will be injurious to the franchise to collect the tolls on the health or comfort of citizens and inhabitants toll road, and to deliver the possession of of the city of Fort Worth in attending public all property necessary for the exercise of the worship or schools located in said section of powers and the receipts of the proceeds therethe city above described."

of," was too indefinite to constitute a deter

mination of the rights of the parties. See, al[6] Various definitions of a judgment have so, another California case, Wallace et al. v. been given by text-book writers and the Farmers' Ditch Co. et al., 130 Cal. 578, 62 Pac. courts but the definition given in 15 R. C. L., 1078. See, also, Neff v. Sand Co., 108 Ky. p. 569, § 2, is sufficient for this discussion. 457, 55 S. W. 697, 56 S. W. 723.

(248 S.W.) ic that the defendants would know how to At the time that the defendants below filed observe it, and when they were violating it. the motion to pass the hearing on its merits In the opinion of the majority, the defendants to the next term of court, the only pleading could not so determine from the judgment in on file by the plaintiffs was their original pethe instant case.

tition, in which the prayer for relief was Judgment reversed, and cause remanded. couched in terms sufficient to justify the trial

judge to grant a temporary restraining order On Motion for Rehearing.

as well as a permanent injunction. Hence Appellee, in its motion for rehearing, stren- the defendants' answer was to the original uously urges that we erred in many respects petition, and we think the answer should reain our former opinion and judgment. First, sonably be construed as replying to the that we erred in holding that the trial court prayer for a special restraining order. should have sustained the appellants' motion The motion for rehearing is overruled. to postpone the hearing upon the merits of the case until the next term of court. Counsel for appellee states that in such holding we are in direct confict with the San Antonio Court of Civil Appeals in the case of Lang v. Henke, H. W. WILLIAMS & CO, et al. v. TURNER22 Tex. Civ. App. 490, 55 S. W. 374, and in

MYERS DRUG CO. et al. Guerra v. Guerra, 213 S. W. 360, and with

(No. 10082.) the Supreme Court in Browder v. Memphis (Court of Civil Appeals of Texas. Fort Worth. Ind. School District, 107 Tex, 535, 180 S. W.

Dec. 23, 1922.) 1077. In Lang v. Henke, supra, writ of error

1. Parties denied, the plaintiff was appellant. In the

en 51(1)-Statute providing for court below the plaintiff insisted on a jury

suit in county of either defendant permis.

sive only. trial. The cause was set for trial by the court, and, prior to the date for which it 1830, subd. 4, providing that where there are

Vernon's Sayles' Ann. Civ. St. 1914, art. was set, the jury had been discharged. The two or more defendants residing in different plaintiff insisting on a jury, the court ap- counties suit may be brought in any county pointed three jury commissioners, and a jury where any one of the defendants reside, is was drawn, and the cause was tried. Appel- permissive only and is the privilege granted lant made no motion for a continuance, but plaintiff in the suit thereunder, but nothing objected to the case being tried because the within the exception requires either party to suit was not instituted 10 days before the be bring in new parties against whom he may

desire to plead over. ginning of the current term. The defendants had waived their right to have the case pass- 2. Parties Cw51(4)-Defendant's rights under ed over to the next term, and the plaintiff

alleged creditors' agreement not that of sure. was held

ty or contraotee requiring appearance of be in no position to complain.

creditors in defendant's county. As said in the case of Browder v. Memphis Ind. School District, supra,

In action on a partnership debt wherein a

retired partner was granted plea of privilege “A court acquires jurisdiction over a plaintiff and answered alleging a prior sale of his inby his submission to it of the cause of action terest to his partner, who assumed the firm's' which he alleges. A voluntary appearance is debts, and a later agreement between the suras effectual to confer jurisdiction over a de- vivor and creditors wherein creditors took over fendant as the due service of process."

the business and assumed the debts including

plaintiff's and asked that the creditors, all nonBut we do not think in the instant case residents, be made parties, claiming he was a that the filing of an answer by defendant to surety and under Vernon's Sayles Ann. Civ. plaintiffs' original petition, in which a tem- St. art. 6336, they should be joined, and under porary injunction was prayed for, could be article 1848, they should be brought in as propheld to be a waiver of the defendant's right creditors and plaintiff was not such, as con

er parties, held, that defendant's relation to to have the cause passed over until the next tractee or implied surety, as to require apterm for a hearing on its merits. We do not pearance of creditors in his county on his pefind any holding in any of the cases cited by tition, appellee, or in any other case examined by us, in our opinion contrary to the holding in

Appeal from Bosque County Court; W. A. the original opinion.

York, Judge. The case of Williams v. Huling, 43 Tex. Action by the J. W. Crowdus Drug Com113, and Wheeler & Dabney v. Roberts, 2 pany against the Turner-Myers Drug ComWillison Civ. Cas. Ct. App. $ 127, and other pany, a copartnership composed of J. E. cases cited by appellee to sustain its conten- Turner and another. After change of venue tion that the effect of the filing of an answer to the county of defendant J. E. Turner's by the defendants was toʻput the defendants residence, he filed answer making 1. W. Wilin court, are not cases involving injunctions liams & Co. and others parties, all nonresior other special writs or equitable remedies. Idents. H. W. Williams & Co. and others filed

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes

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pleas of privilege to be sued in the counties, including the account or indebtedness upon of their residence, which were overruled, and which the J. W. Crowdus Drug Company had they appeal. Judgment reversed, and cross- instituted its suit; that after such dissoluplea dismissed.

tion Myers continued said business in DesCapps, Cantey, Hanger & Short, of Fort demona under the name of C. R. Myers Drug Worth, and Allan V. McDonnell, Witt, Ter- Company until about November 15, 1919, rell & Witt, and G. T. Shires, all of Waco, when Myers got in an embarrassed financial for appellants.

condition and came to Fort Worth and called James M. Robertson, of Meridian, and Ras- a meeting of his creditors, including the J. bury, Adams, Stennis & Harrell, of Dallas, W. Crowdus Drug Company and the H. W. for appellees.

Williams Drug Company and the other per

sons, firms, and corporations named in his CONNER, C. J. The J. W. Crowdus Drug cross plea; that at said meeting it was tiCompany instituted this suit in the county nally arranged between Myers and his said court of Dallas county against the Turner. creditors that he (Myers) should, for a conMyers Drug Company, a copartnership, com-sideration of $700 in cash then paid to him, posed of J. E. Turner and C. R. Myers, to set over and assign to Dr. R. McDaniel bis recover upon an open account in the sum of said stock of drugs in Desdemona and the $998.67. Turner resided in Bosque county, leasehold estate upon which the business had Tex., and Myers resided in Eastland county, been conducted, as a trustee for the benefit Tex. On April 27, 1920, the defendant Turn- of all of said creditors, said creditors also er filed his plea of privilege to be sued in the assuming to pay each and all of the outcounty of his residence. The plea was sus- standing indebtedness of the C. R. Myers tained and the cause transferred from the Drug Company and the Turner & Myers Drug county court of Dallas county to the county clared upon by the J. W. Crowdus Drug Com-

Company, which included the account decourt of Bosque county.

After the suit was transferred, as stated, pany. It was further alleged that pursuant to J. E. Turner filed an answer in which he such settlement and agreement Dr. McDaniel made the appellant H. W. Williams & Co. and took charge of the business at Desdemona eight other firms and individuals parties to and later sold it to Dr. Kuykendall upon the suit. All of the persons and firms named terms not thought to be necessary to state, in such answer were nonresidents of Bosque and that, later, while the business was being county; the defendant Turner alone of all so conducted by Kuykendall, the property, the parties engaged in the controversy being which was uninsured, had been destroyed by

fire. a resident of Bosque county. H. W. Williams & Co., as also the others named in the cross

As presented in defendant Turner's crossplea, appeared and presented pleas of privi- plea for additional parties, it seems that lege to be sued in the county of their resi- Turner bases his right to relief upon two dence. It was agreed that the pleas should be theories. The first, upon the theory of a considered and determined upon the plea of conversion of the stock of merchandise reH. W. Williams & Co. The plea is in all re- ferred to; and, second, upon the theory that, spects in compliance with the statute and set by virtue of the agreement of H. W. Wilup the fact that H. W. Williams & Co. had liams & Co. and the other creditors to pay its domicile and principal place of business

the outstanding indebtedness of the Turnerin the city of Fort Worth, Tarrant county, Myers Drug Company and of the C. R. Myers Tex., and that none of the exceptions to the Drug Company, the said H. W. Williams statute authorizing suits elsewhere existed. Drug Company and the other creditors of The defendant Turner controverted the plea the concerns became the principal debtors of of privilege, and after a hearing thereon it J. W. Crowdus Drug Company upon the acwas overruled, and H. W. Williams & Co. count declared upon, and he (Turner) but a have appealed.

surety for the payment thereof, invoking arThe controverting affidavit of the defend- ticle 6336, V. S. Tex. Civ. Statutes, which ant Turner alleged substantially the facts

declares thatpresented in his plea for additional parties "No surety shall be sued, unless his prinupon which it is sought to retain jurisdiction cipal is joined with him, or unless a judgment against H. W. Williams & Co. and the other has previously been rendered against his prinparties named in Bosque county. Briefly cipal,” except in certain cases not necessary

to bere specify. stated, the material facts so alleged are as follows: That during the year 1919 the We do not think the action of the court in said Turner & Myers, as partners, were en- overruling the piea of privilege can be susgaged in business as druggists under the tained on the ground that there was a conname of the Turner-Myers Drug Company; version of property in which the appellee that on the 26th day of August of that year Turner had an interest of any kind. If, Turner sold out his interest in the business under any consideration, it could be said that to C. L. Myers, Myers, as consideration, giv- the appellant H. W. Williams & Co. or the ing Turuer two notes for $900 each and as other creditors were guilty of a conversion so

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(248 S.W.) tion to article 1830, Rev. Statutes, giving a | together with Myers in Eastland county; but defendant the right to be sued in the county nothing within the terms of this exception of his domicile, except where the foundation can be said to require either plaintiff or de of the suit is some crime, or offense, or tres fendant to bring in new parties against whom pass for which a civil action in damages may he may desire to plead over. However, it is lie. Because, if it was a conversion, it was insisted that under article 1848, Rev. Statin Eastland county or Tarrant county, and utes, that authority exists for the bringing not in Bosque county. However, we need not in of appellant and the other creditors. That consider this phase of the case, for on the article thus reads: appeal the appellee Turner distinctly states,

"Before a case is called for trial, additional in his first, second, and third counter propo- parties may, when they are necessary or propsitions that he does not seek to recover for er parties to the suit, be brought in by proper a conversion of the property or "expect venue process, either by the plaintiff or the defendin this case by reason of a suit oť trespass ant, upon such terms as the court may preor in conversion.”

scribe; but such parties shall not be brought [1] It therefore only remains for us to in at such a time or in such a manner as undetermine whether, under the facts stated, reasonably to delay the trial of the case.” H. W. Williams & Co. bears such relation to

In this connection it is to be further noted the appellee Turner, or is so connected with that it is nowhere alleged by appellee, nor the debt of J. W. Crowdus Drug Company otherwise shown in the record, that Turner upon which the suit in Bosque county is was a participant in the agreement of the pending, as to confer upon Turner the right creditors to pay the debts of the Desdemona to sue the appellant company and the other business. But if it be admitted that as becreditors in Bosque county. If, in fact, as

tween Turner and Myers the former in his appellee Turner in part contends, at the relation to the debt declared upon by the creditors' meeting at Fort Worth, the credi- J. W. Crowdus Drug Company is but a suretors agreed to pay the indebtedness of the ty, and further that he might avail bimself business at Desdemona and discharge both of the assumption agreement on the part of Turner and Myers, and if the J. W. Crowdus the creditors and have cause of action Drug Company was in fact a party to that against either Myers or the creditors, or agreement and consented to such discharge, both, we yet think that as to the indebtedness such facts would constitute a bar to the suit upon which the J. W. Crowdus Drug Comof the J. W. Crowdus Drug Company in pany declared the appellee Turner is not such Bosque county, and no necessity for the in- surety as would require the court in his intervention of the other parties would be nec terest and for his benefit to bring in the essary. If, on the contrary, J. W. Crowdus creditor parties and against them render Drug Company was not a party to the agree- judgment, as he prays for, in appellee's favor ment as to the account upon which it declar- for any sum for which the J. W. Crowdus ed and did not consent to discharge Turner Drug Company might obtain judgment. and Myers therefrom, it would not be bound.

The case of Holloway v. Blum, 60 Tex. 625, It may be said that appellee Turner's cross

was one wherein a mercantile firm in Galaction and controverting affidavit is suscepti- reston obligated itself to a member of a merble of the construction that while the agree-cantile firm in Fayette county to release the ment of the creditors might not constitute a said member of all claims against his firm bar because of a failure on the part of J. W. and to guaranty him immunity against all Crowdus Drug Company to consent to a dis- creditors of his firm if he would release and charge of Turner and Myers, that neverthe convey his interest in the firm to his coless, the J. W. Crowdus Drug Company could partners, which he did. Afterwards, in a avail itself of the assumption of the other suit brought by a third party in Fayette creditors to pay the debts of those two de- county, for a firm debt, against all the memfendants, and that it would have a cause of bers of the Fayette county firm, the retiring action against such creditors on such as member asked that the Galveston firm be sumption, and hence such creditors would be made parties to the suit, and that he have proper parties to this suit. If it be so admit- judgment over against the firm for any sum ted, we do not think the J. W. Crowdus Drug adjudged against him in the suit. The memCompany can be compelled to bring said par- bers of the Galveston firm appeared and ties in and declare upon such assumption. It pleaded to the jurisdiction of the court, and is to be noted that the fourth exception to it was held that the Galveston firm sustained article 1830, providing that “where there are no such legal or equitable relation to the two or more defendants residing in different plaintiffs as would have authorized a suit counties, in which case the suit may be against them, even in Galveston county; brought in any county where any one of the where the members of the firm resided, and defendants reside,”

permissive only, and that the plea of privilege of the members of eridently is the privilege granted to the the Galveston firm was properly sustained. plaintiff in the suit thereunder. It is clear It was said that there was no stipulation that that Myers could be sued together with Turn- the contract of the Galveston firm was to be er in Bosque county, or Turner could be sued performed in Fayette county, and that the

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