Opinion
No. 9349.
November 22, 1933. Rehearing Denied December 16, 1933.
Appeal from Forty-Fifth District Court, Bexar County; S. G. Tayloe, Judge.
Action by L. B. Knox and others against Margaret M. Morrison and others. From an order dissolving an injunction theretofore issued, the plaintiffs appeal.
Injunction dissolved, and judgment affirmed.
James A. King, of Austin, for appellants.
Terrell, Davis, Hall Clemens, of San Antonio, for appellees.
On Appellants' Motion to Issue Temporary Restraining Order.
In view of the fact that the Honorable Court of Civil Appeals for the Fifth District, at Dallas, has recently upheld the constitutionality of House Bill No. 231 (known as the Moratorium Law [Vernon's Ann.Civ.St. art. 2218b]) in Lingo Lumber Company v. W. J. Hayes, 64 S.W.2d 835, which decision is in direct conflict with the opinion of this court in Malachy Murphy v. E. O. Phillips, 63 S.W.2d 404, we have decided to set aside our order hereto made dissolving the temporary injunction issued in this cause and reinstate such injunction until this cause can be submitted and fully disposed of in this court.
We deem it necessary to take this action so that appellants may have a final disposition of this appeal in this court before our temporary injunction heretofore granted is dissolved, in view of the fact that after a final disposition of this appeal here appellants may be able to secure further relief in the Supreme Court.
This cause is advanced and set for submission November 15, 1933.
This appeal is from an order dissolving an injunction, theretofore issued, restraining the sale of real property by trustee under deed of trust given to secure appellant's debt to appellees.
The injunction was sought, and originally granted, solely by virtue of the provisions of the so-called Moratorium Act, passed by the 43d Legislature (H. B. No. 231, Acts 1933, Reg. Sess. ch. 102, p. 225 [Vernon's Ann.Civ.St. art. 2218b]).
This court has previously held the act to be invalid in so far as it grants the right to restrain sales by trustees under powers conferred by deed of trust, as in this case. Murphy v. Phillips (Tex.Civ.App.) 63 S.W.2d 404, and for the reasons stated in the opinion in that case the judgment here appealed from must be affirmed. This order carries with it a further order dissolving the injunction heretofore issued, dissolved and reinstated by this court.
The injunction is dissolved, and judgment affirmed.