City of Aransas Pass v. Usher

Court of Appeals of Texas

City of Aransas Pass v. Usher

191 S.W. 157, 1917 Tex. App. LEXIS 16

CourtCourt of Appeals of Texas

DecidedJanuary 10, 1917

DocketNo. 5776.

StatusPublished

Cited by6 cases

This text of 191 S.W. 157 (City of Aransas Pass v. Usher) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of Aransas Pass v. Usher, 191 S.W. 157, 1917 Tex. App. LEXIS 16 (Tex. Ct. App. 1917).

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Opinion

PLY, C. J.

This suit was instituted by Linton J. Usher, W. H. Starbuck, and C. P. McAllister against the city of Aransas Pass and the mayor, clerk, and commissioners thereof, the First State Bank, and the Progress Printing Company, probably to obtain writs of injunction and have them perpetuated to prevent the payment of certain city warrants issued by the city to the printing company. The prayer of the petitioners is:

“Wherefore defendants having been cited to appear and answer, and the writs of injunction prayed for in plaintiffs’ original petition having been issued and served on each of the defendants, plaintiffs pray as in their original petition, and for such other and further relief, special and general, in law and in equity, to which they may be entitled.”

[1, 2] When the amended petition was filed, the original petition was discarded, and it had to be tested by its own allegations, and no reference to the abandoned pleading could aid it. However, if this were not the rule, this court could not be aided by the reference, as the original petition does not appear in the record. We can infer that appellees sought a permanent injunction, because the court granted them a judgment making a temporary injunction permanent, although the judgment fails to indicate what is enjoined. This can be ascertained, however, from the temporary writ of injunction which is embodied in the record. The city alone has appealed, but why it should appeal does not appear from anything in the record. Why it should be so solicitous about paying the debt is not shown.

The brief of appellant fails to follow the rules, as to briefing a cause, in' any respect. None of the assignments of error are copied into the record, and no effort is made to present the points raised by it There is no fundamental error.

The judgment is affirmed.

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PLY, C. J.

This suit was instituted by Linton J. Usher, W. H. Starbuck, and C. P. McAllister against the city of Aransas Pass and the mayor, clerk, and commissioners thereof, the First State Bank, and the Progress Printing Company, probably to obtain writs of injunction and have them perpetuated to prevent the payment of certain city warrants issued by the city to the printing company. The prayer of the petitioners is:

“Wherefore defendants having been cited to appear and answer, and the writs of injunction prayed for in plaintiffs’ original petition having been issued and served on each of the defendants, plaintiffs pray as in their original petition, and for such other and further relief, special and general, in law and in equity, to which they may be entitled.”

[1, 2] When the amended petition was filed, the original petition was discarded, and it had to be tested by its own allegations, and no reference to the abandoned pleading could aid it. However, if this were not the rule, this court could not be aided by the reference, as the original petition does not appear in the record. We can infer that appellees sought a permanent injunction, because the court granted them a judgment making a temporary injunction permanent, although the judgment fails to indicate what is enjoined. This can be ascertained, however, from the temporary writ of injunction which is embodied in the record. The city alone has appealed, but why it should appeal does not appear from anything in the record. Why it should be so solicitous about paying the debt is not shown.

The brief of appellant fails to follow the rules, as to briefing a cause, in' any respect. None of the assignments of error are copied into the record, and no effort is made to present the points raised by it There is no fundamental error.

The judgment is affirmed.

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191 S.W. 157, 1917 Tex. App. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-aransas-pass-v-usher-texapp-1917.

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