Appellant in his motion for rehearing insists that this court erred in holding that the irregularities in granting the temporary writ of injunction did not affect the action of the court in granting an injunction on the trial on the merits, and contends that there was no bond given as required by law and as required by the trial judge as a condition precedent to the issuance of the temporary writ of injunction, and for that reason that the court below *Page 321 erred in granting a perpetual injunction without the execution of bond; and asks for our conclusions as to the state of the record on this question, which we here give:
On November 16, 1895, appellees presented their application for injunction to the trial judge in vacation, who made an order temporarily restraining the defendant from fencing the lot until the further order of the court upon the application, which was set down for hearing on December 2, 1895. It seems no hearing was had until December 13, 1895, at which time the judge set aside his restraining order theretofore made, and entered an order granting the injunction as prayed for, conditioned that the applicants give bond as required by law in the sum of $1000.
On January 6, 1896, defendant filed his motion to dissolve the writ of injunction, one of the grounds, among others, being that the applicants had not executed bond as required by law. The motion to dissolve was overruled.
There is no bond or writ of injunction in the record; nor is there any evidence to show that such bond was not executed, or that the writ of injunction was issued, except the motion to dissolve and the action of the court overruling it. This is not enough to show that no bond was executed; and in the absence of proof that there was no bond executed, the presumption will be in favor of the judgment of the court below overruling the motion to dissolve the injunction. In the absence of something in the record to show the contrary, the law always presumes in favor of the judgment of the court. If, however, no bond was executed, the temporary injunction was improperly issued and should have been dissolved on motion; but the error, if it was such, in refusing to dissolve, does not in any way affect the injunction granted on the trial on the merits. The judgment of the court on final hearing is a general judgment for the appellees, granting a perpetual injunction against the appellant, and in no way refers to the temporary injunction theretofore granted. In order to grant relief on the merits of the case, it is not a prerequisite that the temporary injunction should have theretofore been granted. In granting a temporary injunction, a bond is required in order that the parties will be secured in such damages as they may be adjudged to have sustained on the trial on the merits of the case. On the trial, if the applicant is shown to be entitled to a perpetual injunction, such relief is granted without bond being required.
The appellant relies upon Downs v. Monroe, 46 Tex. 307 [46 Tex. 307]. We do not think that case contravenes the doctrine we have just announced. It is true, that case holds that it was wrong to issue the writ of injunction without giving bond; but as we understand that case, it was reversed and dismissed because the petition of the applicant showed upon its face that he was not entitled to the relief sought. In the case under consideration, the plaintiffs were entitled to an injunction on the trial *Page 322 on the merits, regardless of what the proceedings had been prior thereto.
The motion for rehearing is overruled. Overruled.
Writ of error refused.