I must dissent from the holding of the majority.
Appellee's counsel candidly admitted in oral argument on submission in this Court that he, like appellants' counsel, was of the opinion that the hearing in question was one to determine whether the temporary injunction which appellee sought should be granted. Without in any way detracting from the credit which is always the due of candid admissions, it is highly unlikely that an active practitioner at the Harris County Bar could have thought otherwise. This because the hearing was set for the application for temporary injunction for July 8, 1954, and was later reset by agreement of counsel for August 17, 1954. Such setting indicated that it was one to 'show cause'. Under the rules of the Civil District Courts of Harris County cases are set for trial on the merits by the written request of either party on or before the twentieth day of the month preceding the two-month assignment. A copy of such request for a setting for trial on the merits is furnished opposing counsel. Here no request was ever made for a setting of this cause on the merits. Again, the Civil District Courts of Harris County do not, except by agreement of counsel, set cases for trial on the merits between the latter part of July and the first of October. This is the period in which the courts recess for the summer vacation. But said courts do hear matters on the ancillary docket such as relate to temporary injunctions, domestic relation matters and matters preliminary to trial on the merits generally.
It was only after the parties to the hearing, which was held as set for August 17th, had rested, that the court announced he was going to render final judgment in the case, and the parties first learned that the court was undertaking no convert the hearing on the application for a temporary injunction into a trial on the merits. In response to appellants' protest, the court offered to reopen the case so as to permit appellants to offer such additional evidence as was relevant and which appellants cared to offer.
The appellee does not undertake to justify the action of the trial court in converting a hearing on the application for a temporary injunction into a trial upon the merits upon the grounds that appellants had waived any right to seasonable notice of a trial upon the merits, or upon the ground that they had so participated in actions which were taken before the court, or that they had so invoked the jurisdiction of the court as would estop them from complaining of a rendition of a final judgment upon a hearing by the court of an interlocutory matter. It would seem to me unnecessary to support, by citation of authority, the proposition that a court is not authorized to render a final judgment on merits upon a hearing upon an application for a temporary injunction, however see James v. E. Weinstein Sons, Tex.Com.App., 12 S.W.2d 959; Transport Co. of Texas v. Robertson Transports, Tex., 261 S.W.2d 549, 552.
In so far as this suit was one for a declaratory judgment, it was one that had to be tried upon the merits, and the court was without authority, upon a hearing upon a temporary injunction, to render a declaratory judgment. The doctrine of 'harmless error', which is invoked by the appellee to support the court's judgment and which seems to be the basis upon which the majority *Page 389 uphold the judgment, in my opinion, has no application here. It would indeed be a vain and foolish thing to reverse a case merely for the sake of form; that is, merely because the court had been guilty of some error which had not affected the complaining party adversely and the case was properly decided.
But in my opinion it is a denial of the due process of law for a court to undertake to put a party to trial without his being given such notice as the law and rules of court allow him. A denial of due process of law can never be harmless error. 5 C.J.S., Appeal and Error, § 1709, pp. 906-907. Here appellants were within their rights in declining to offer any evidence or otherwise waive their rights not to proceed to trial on the merits without due and proper notice.
For the error of the court in proceeding to render final judgment on the merits over appellants' objection, when the only notice that the parties had was that the hearing was to be concerned with an interlocutory injunction, the judgment should be reversed.