On Appellee's Motion for Rehearing. We have concluded that our conclusion in our original opinion was erroneous. From appellant's petition it appears that he had not occupied or used the premises since January 1, 1931, other than to keep stored there certain fixtures used by him before he made an assignment for benefit of his creditors. It further appears from appellant's petition that he has not been in business since January 1, 1931, and that, while he was willing to go into business in the near future, he has only a willingness to do so. There is no showing of a definite intention to use the property in question in his business, at any definite time, coupled with the means of doing so. This is not sufficient. Shryock v. Latimer,57 Tex. 674; Alexander v. Lovitt, 95 Tex. 661, 69 S.W. 68, 69; Hull v. Naumberg, 1 Tex. Civ. App. 132, 20 S.W. 1125. "The mere intention to again engage in the business could not supply the place of an existing business and the use of the property in its exercise, both of which were essential to the execution." The Alexander Case, supra. *Page 815
The effect of our present ruling is to dissolve the restraining order or temporary injunction heretofore issued by this court.
Motion for rehearing granted, our former judgment set aside, and trial court's judgment affirmed.
PLEASANTS, C. J., absent.