Opinion
No. 9639.
April 30, 1921.
Appeal from Clay County Court; E. W. Coleman, Judge.
Suit by the Pittman Harrison Company and others against J. P. Boatenhamer. From judgment refusing plaintiffs a permanent injunction against defendant, plaintiffs appeal. Appeal dismissed.
Harney Shaw, of Sherman, and W. G. Eustis, of Henrietta, for appellants.
Wantland Dickey, of Henrietta, and L. W. Parrish, of Washington, D.C., for appellee.
This is an appeal from a judgment refusing Pittman Harrison Company and other plaintiffs a permanent injunction against J. P. Boatenhamer. Boatenhamer, in a former suit, on, to wit, January 9, 1918, secured a judgment for $500 damages against the appellants here. An appeal was taken from this judgment, and the Court of Civil Appeals for the Seventh District affirmed the judgment. See Pittman Harrison Co. v. Boatenhamer, 210 S.W. 972. The application for writ of error was dismissed by the Supreme Court for want of jurisdiction. On the trial of the suit for damages Pittman Harrison Company impleaded J. C. Hunt, of Wichita county. Hunt filed his plea of privilege to be sued in the county of his residence, which plea was not controverted, and the court sustained the plea, and in so far as it affected Hunt transferred the cause to Wichita county, but proceeded to try the issues between the plaintiff and Pittman Harris Company in Clay county. In the instant suit plaintiff sought to enjoin Boatenhamer from having execution issued on the former judgment.
On a former day of this term we overruled appellants' motion to advance, since it did not appear that this appeal was from a judgment refusing a temporary injunction, but was an appeal from a judgment refusing a permanent injunction. Article 4644, V. S. Tex. Civ.Stats., as amended Acts 26th Leg. p. 22. Appellant has filed no briefs in this court. Article 4645, providing, among other things, that the Court of Civil Appeals may hear the appeal on the bill and answer, and such affidavit and evidence as may have been admitted in the trial below, and that neither appellant nor appellee is required to file briefs, does not apply to an appeal from a judgment refusing a permanent injunction. Hence the appellants have failed to comply with the rules with reference to preparing a case for this court, and their appeal is dismissed for want of prosecution.