Boyd v. Dudgeon

192 S.W. 262, 1917 Tex. App. LEXIS 74

• Court: Court of Appeals of Texas
• Decided: January 24, 1917
• Docket: No. 5860.
• Status: Published

Opinion

FLY, C. J.

This is a suit brought by appellant to enjoin appellees, who form the commissioners’ court of Calhoun county, “from opening the polls * * * and counting the votes cast thereon of a certain local 'option liquor election,” "and from mailing an order declaring the result of said election,” and “from causing the publication of the order of the court declaring the result and prohibiting the sale of liquors.” The matter was heard in chambers in De Witt county by the district judge, and a general demurrer sustained to the pleadings, and the injunction denied.

This appeal cannot he sustained unless it was taken from an interlocutory order refusing a temporary injunction, as provided in article 4644, Rev. Stats. The pleadings in this case did not seek a temporary writ of injunction, but the prayer is for a permanent injunction. It has been held in some states and is found in the chancery practice of others, that a temporary writ or restraining order will not be granted unless specifically prayed for in the bill. Savage v. Parker, 53 Fla. 1002, 43 South. 507; Church v. Conover, 27 N. J. Eq. 157; Joyce on Inj. §§ 132, 133, and notes. As said in the Florida case:

“Obviously this prayer cannot be held to relate both to a restraining order, or temporary injunction, and to a perpetual injunction, and, to say the least of it, it is left in doubt as to which was intended. That it is irregular and improper to grant a preliminary or temporary injunction or restraining order, unless [it] is specifically prayed for in the bill. See equity rule 25. * * * ”

See, also, Beach on Injunctions, § 132. An injunction will not be granted under a prayer 'for general relief. ‘

The cause will be dismissed.