Sonny Arnold, Inc. v. Sentry Savings Ass'n

ON MOTION FOR REHEARING

In their motion for rehearing, respondents Sentry Savings Association and Lorin Kumley correctly note that our writ of injunction, as well as our order and opinion supporting it, are overly broad. The writ of injunction issued to preserve the subject matter of the appeal in our Cause No. 9247 until we could determine the propriety of a trustee’s sale under paragraph 19 of the deed of trust; however, by the operation of our language, we effectively enjoined a trustee’s sale of the subject realty under any and all provisions of the deed of trust. This result was neither requested by petitioners nor intended by us, for any prohibition of authorized remedial action unrelated to the issue presented for determination is unwarranted. Accord, Pait v. International Brotherhood of Boiler, etc., 322 S.W.2d 349, 355-56 (Tex.Civ.App.—Houston 1959, no writ).

Consequently, our 2 June 1980 order for writ of injunction and the writ of injunction should be, and hereby are ordered to be, modified to provide that

Sentry Savings Association and Lorin Kumley, substitute trustee, are enjoined, effective until the disposition of the appeal in our Cause No. 9247, from selling Lot Two (2), Village West Addition, an addition to the City of Lubbock, Lubbock County, Texas, at the trustee’s sale scheduled for the 3d day of June, A.D. 1980, or otherwise, under the purported authority of paragraph 19 of the deed of trust.

Because we are confident the parties will observe this modification, a formal modified order and writ of injunction will issue only if necessary to effectuate the modification.

Concerned that our injunctive order will become final and deprive us of further jurisdiction over it, respondents suggest this proceeding should be consolidated with Cause No. 9247 to assure continuing jurisdiction if its exercise over the injunction becomes necessary during the pendency of *94the appeal. The concern is merely illusory. As a matter of jurisdiction to grant the temporary injunction, there is continuing jurisdiction over it, Stein v. Frieberg, Klein & Co., 64 Tex. 271, 273 (1885), until the disposition of the appeal. Hubbart v. Willis State Bank, 119 S.W. 711, 714 (Tex.Civ.App.—1909, writ ref'd).

Respondents also complain of the assessment of costs against them. In assessing costs, we adhered, as other courts have, to the general principles governing costs on appeal, which allow the successful party to recover costs. See, e. g., Pait v. International Brotherhood of Boiler, etc., supra, at 356. Respondents have not cited any authority to the contrary.

Accordingly, Sentry Savings Association’s and Lorin Kumley’s motion for rehearing is granted to the extent of the modification ordered herein. In all other respects, the motion is overruled.