Is the Order Void Ab Initio ? In its first issue, the Board alleges the order granting the injunction is void because the Vales did not request a bond in their pleadings and because they failed to post a bond at the time of this appeal. A temporary injunction order that fails to require an applicant to post a bond is void. Qwest Communications Corp. v. ATT Corp., 24 S.W.3d 334, 337 (Tex. 2000); Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex. 1956); see Tex.R.Civ.P. 684. Further, the applicant must execute the bond to the adverse party and file it with the clerk before the trial court issues the temporary injunction.
In Cleveland, a plea in abatement had already been heard and denied in the second district court. Id., 285 S.W. at 1072; see also Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 306 (Tex. 1956). The supreme court found that its decision was consistent with the doctrine that holds that the pendency of a suit in another jurisdiction must be seasonably pleaded in abatement.
Lesher and Naples argue that they were under no duty to comply with the temporary restraining order because it was void on its face for failing to recite that the court had determined the amount of security to be given by Cooksey, and for the further reason that Cooksey did not execute and file with the clerk a bond prior to issuance of the temporary restraining order as required by Tex.R.Civ.P. 684. The Relators cite our holding in Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (Tex. 1956), as authority for their argument. Lancaster held that an injunction was void for the reason that no bond had been required by the trial judge as a condition precedent to the issuance of the injunction under Rule 684.
"The rule is well settled that, where two actions involving the same subject-matter are brought in different courts having co-ordinate jurisdiction, the court which first acquires jurisdiction, its power being adequate to administer full justice to the rights of all concerned, should retain such jurisdiction, undisturbed by the interference of any other court, and dispose of the whole controversy." Lancaster v. Lancaster, Tex., 291 S.W.2d 303, 305. See Texas Trunk Ry. Co. v. Lewis, 81 Tex. 1, 8, 16 S.W. 647, 648, 26 Am.St.Rep. 776; Way & Way v. Coca Cola Bottling Co., 119 Tex. 419, 29 S.W.2d 1067; McCurdy v. Gage, 123 Tex. 558, 69 S.W.2d 56, 59; Tex.Com.App., 75 S.W.2d 1107.
After submission of the cause, we permitted the filing of a supplemental transcript wherein it is shown that the order granting the temporary restraining order required Vivian to file a bond before the writ would issue and a copy of the bond filed pursuant thereto is also brought forward. It is settled law in this state that a temporary injunction issued without a bond is void. Rule 684; Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956); Ex parte Coffee, supra, 328 S.W.2d at p. 291. We recognize that under certain circumstances a bond given in compliance with an order granting a temporary restraining order may be extended to cover the requirement of a bond under an order granting a temporary injunction.
The question of good faith, fraud and conduct of a party relating to the matter of estoppel is a fact issue that must be finally determined by the court hearing the plea in abatement. Russell v. Taylor, 121 Tex. 450, 49 S.W.2d 733 (1932); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303; V. D. Anderson Co. v. Young, supra. Should that court resolve the fact issue against the proponent of the plea in abatement, then the second court becomes vested with dominate jurisdiction and the prior action is postponed until a final disposition of the case in the second court. Lancaster v. Lancaster, supra; Russell v. Taylor, supra. The plea in abatement being purely interlocutory can only be reviewed by an appellate court when a final judgment is rendered in the case.
Because we agree that the orders are void for failure to comply with mandatory procedural requirements, we conditionally grant the writ. Texas Rules of Civil Procedure 680 and 684 require a trial court issuing a temporary restraining order to: (1) state why the order was granted without notice if it is granted ex parte, TEX.R. CIV. P. 680; (2) state the reasons for the issuance of the order by defining the injury and describing why it is irreparable, id.; (3) state the date the order expires and set a hearing on a temporary injunction, id.; and (4) set a bond, TEX.R. CIV. P. 684. Orders that fail to fulfill these requirements are void. InterFirst Bank San Felipe, N.A v. Paz Constr. Co., 715 S.W.2d 640, 641 (Tex. 1986); Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308 (1956). The temporary restraining order and amended orders issued by the trial court violate these rules.
We have also held that a temporary injunction was void when there was no bond. See Lancaster v. Lancaster, 291 S.W.2d 303, 308 (Tex. 1956) (holding that bond provisions of Rule 684 are mandatory). Here, these procedural requirements may render the trial court's order void but they do not change the order's character and function defining its classification.
The court of civil appeals, relying upon Carleton v. Dierks, 195 S.W.2d 834 (Tex.Civ.App. — Austin 1946, no writ), held that the failure of the trial court to fix the amount of security and to require the applicant to file a bond to the defendant in that sum, did not make the original order granting the injunction void, but voidable only. This decision of the court of civil appeals is in conflict with the opinion in Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303 (1956), a previous opinion of this Court, wherein we held that under Rule 684 a bond is specifically required as a condition precedent to the issuance of a temporary injunction, and the failure of the applicant to file such a bond renders the injunction void Ab initio. In accordance therewith, we reverse the judgment of the court of civil appeals under Rule 483, Tex.R.Civ.P., without granting James Goodwin's writ of error and hearing the case, and we reverse the judgment of the trial court and remand the cause to the trial court.
Respondents assert, in substance, that the bond is no bond at all because the trucking company plaintiffs and intervenor, Hill & Hill, did not sign the bond, the railroad plaintiffs have lost interest in continuance of the temporary injunction, and Oil Field Haulers, Inc., is a corporation in the nature of a trade association with no justiciable interest in the litigation. In Lancaster v. Lancaster, 155 Tex. 528, 291 S.W.2d 303, 308, we held void a writ of temporary injunction where no bond was required or given; but in Ex parte Coffee, 160 Tex. 224, 328 S.W.2d 283, 292, we held that a defective bond which, upon motion, could have been amended and corrected to afford full protection would support a writ of temporary injunction. The question here is ruled by Coffee.