Plateau Oil Co. v. Choate Oil Corporation

* Writ of error granted December 21, 1921.

This is an appeal, according to the transcript on file, from an order and judgment of the Forty-Eighth judicial district court, upon an ex parte hearing, granting an injunction against the Plateau Oil Company of Delaware, the Plateau Oil Company of Texas, their attorney, L. J. Ward-law, their agent, J. Ben Ross, or any other agent or employee of said companies, from selling or in any way disposing of certain notes and securities held by them, alleged to belong to the plaintiffs. The Plateau Oil Company of Delaware and L. J. Wardlaw have appealed. Appellee has filed a certified motion in this court to dismiss the appeal herein, setting up the facts that defendant Plateau Oil Company of Delaware filed an answer and a motion to dissolve the injunction theretofore granted, and the motion was overruled as to defendant Plateau Oil Company of Delaware, and the injunction ordered to remain in full force and effect. No appeal from this last order and judgment has been taken.

Articles 4644 and 4645, Tex. Civ.Stats., were amended by the Thirty-Sixth Legislature. See General Laws 36th Legislature, p. 22, providing for an appeal from an order and judgment overruling a motion to dissolve an injunction theretofore granted, prior to that time no appeal lay as to such order. Walstein v. Nicholson, 47 Tex. Civ. App. 358 , 105 S.W. 207 ; Gregory v. Houston Oil Co. of Texas, 154 S.W. 236 . Prior to this amendment it was held that a party against whom an injunction had been granted did not lose his right of appeal therefrom by making a motion to dissolve the injunction, which latter motion was overruled.

Jeff Chaison Townsite Co. v. McFadden, Wiess Kyle Land Co., 56 Tex. Civ. App. 611 , 121 S.W. 716 . But in this decision the court says:

"It would have been better if the act in question had in fact given the right of appeal from an order refusing to dissolve, instead of from the order granting the injunction, which would have allowed a presentation of the case on appeal upon the petition, answer, and such evidence in addition as was heard on the motion to dissolve, instead of the naked allegations of the petition."

But since the Legislature has specifically given the right of appeal from an order overruling a motion to dissolve an injunction, we are inclined to think defendants have waived their right in this case to appeal from the original order granting the injunction. There has been an election of rights, and the litigant is bound by the election. Williston on Contracts, vol. 2, § 679, subd. 2, and section 683.

If there should be any doubt about our authority to accept an affidavit as to the second judgment, under article 1593, V. S. Tex. Civ.Stats., such doubt is removed by the acknowledgment in appellant's brief that the second judgment was rendered after a hearing.

For the reasons indicated, the appeal is dismissed.

On Motion for Rehearing. We think the two remedies, an appeal from an order issued in chambers granting an injunction, and an appeal from a judgment overruling a motion to dissolve the injunction theretofore granted, are inconsistent remedies. In the first instance only the sufficiency of the petition is to be determined, while in the second the petition, the answer, and the evidence heard are before the trial court and the appellate court. The fact that the end sought is the same in both instances does not make the means by which that end is to be reached consistent. Where one has the right to appeal to one of two courts, by an appeal to one he *Page 687 irrevocably elects to pursue his remedy there, and cannot afterwards appeal to the other. 9 R.C.L. p. 961; Field v. Elevator Co., 6 N.D. 424 , 71 N.W. 135 , 66 Am.St.Rep. 611 . So we think that a litigant, who has the choice of appealing from a peremptory order of the court, in a proceeding in which he was not present and had no opportunity to be heard or to introduce evidence, and elects rather to file his answer and go into the evidence, cannot, after an unfavorable judgment upon such hearing, go back and appeal from the first order.

BUCK, J.

This is an appeal, according to the transcript on file, from an order and judgment of the Forty-Eighth judicial district court, upon an ex parte hearing, granting an injunction against the Plateau Oil Company of Delaware, the Plateau'Oil Company of Texas, their attorney, L. J. Ward-law, their agent, J. Ben Ross, or any other agent or employee of said companies, from selling or in any way disposing of certain notes and securities held by them, alleged to belong to the plaintiffs. The Plateau Oil Company of Delaware and L. J. Wardlaw have appealed. Appellee has filed a certified motion in this court to dismiss the appeal herein,' setting up the facts that defendant Plateau Oil Company of Delaware filed an answer and a motion to dissolve the injunction theretofore granted, and the motion was overruled as to defendant Plateau Oil Company of Delaware, and the injunction ordered to remain in full force and effect. No appeal from this last order and judgment has been taken.

Articles 4644 and 4645, Tex. Civ. Stats., were amended by the Thirty-Sixth Legislature. See General Laws 36th Legislature, p. 22, providing for an appeal from an order and judgment overruling a motion to dissolve an injunction theretofore granted, pri- or to that time no appeal lay as to such order. Walstein v. Nicholson, 47 Tex. Civ. App. 358 , 105 S. W. 207 ; Gregory v. Houston Oil Co. of Texas, 154 S. W. 236 . Prior to this amendment it ,was held that a party against whom an injunction had been granted did not lose his right of appeal therefrom by making a motion to dissolve the injunction, which latter motion was overruled.

Jeff Chaison Townsite Co. v. McFadden, Wiess & Kyle Land Co., 56 Tex. Civ. App. 611 , 121 S. W. 716 . But in this decision the court says:

. “It would have been better if the act in question had in fact given the right of appeai from an order refusing to dissolve, instead of "from the order granting the injunction, which would have allowed a presentation of the case on appeal upon the petition, answer, and such evidence in addition as was heard on the motion to dissolve, instead of the naked allegations of the petition.”

[1] But since the Legislature has specifically given the right of appeal from an order"’ overruling a motion to dissolve an injunction, vve are inclined to think defendants have waived their right in this case to appeal from the original order granting the injunction. There has been an election of rights, and the litigant is bound by the election. Williston on Contracts, vol. 2, § 679, subd. 2, and section 683.

[2] If there should be any doubt about our authority to accept an affidavit as to the second judgment, under article 1593, V. S. Tex. Civ. Stats., such doubt is removed by the acknowledgment in appellant’s brief that the second judgment was rendered after a hearing.

For the reasons indicated, the appeal is idismissed.