State Ex Rel. Yelkin v. Hand

COLEMAN, Justice

(concurring).

The question presented to this Court is one of first impression. I have been unable to find any case on this precise legal question, and we have been cited none. Does this Court have jurisdiction to issue its writ of injunction to prevent stockholders, who are not parties to any litigation other than this original proceeding, from voting their stock for the election of a board of directors at the date set by statute and the by-laws of a private corporation for such an election? If we have jurisdiction, under what circumstances should it be exercised?

Section 6 of Article V of the Constitution of Texas, Vernon’s Ann.St., grants the legislature the authority to prescribe by law both original and appellate jurisdiction for the Courts of Civil Appeals. Art. 1823, V.A.T.S., provides that the court and the judges thereof may issue all writs necessary to enforce the jurisdiction of said courts. We have held in Rathbun v. Boyd, 155 S.W.2d 385, that writs of injunction may issue against those not parties to pending litigation in aid of our jurisdiction in original mandamus proceedings.

We, therefore, have jurisdiction, that is, authority, to issue an original injunction for the sole purpose of preserving our jurisdiction in a case before us on appeal. Madison v. Martinez, Tex.Civ.App., 42 S.W.2d 84, error ref. We are of the opinion that in the present case an injunction is probably necessary to prevent the case before us on appeal becoming moot. However, neither the constitutional provision nor the statute cited above defines the circumstances under which our jurisdiction, once it has been found to exist, should be exercised.

“Injunction is an equitable remedy, and its grant or denial in a particular *473case is governed by those fundamental and established principles by which courts of equity are guided and influenced in their judicial action and in the administration of relief. Some of the rules applicable to the exercise of the power are as binding on the courts as are the rules of law in any case; but in a measure, the application for injunction is addressed to the conscience and sound discretion of the court.” 28 Amer.Jur., Injunctions, § 24, p. 514.
“It is an established principle of •equity that one may not be enjoined from doing lawful acts to protect and enforce his rights of property or of persons, even though damage or loss may result to another as a necessary consequence thereof or the acts may, to some extent, interfere with the administration of justice, unless it is clearly shown that such acts are being •done maliciously to vex, annoy, and injure another, and not for the purpose of preserving and enforcing one’s own rights.” 28 Amer.Jur., Injunctions, § 31, p. 523.
“In the administration of their remedies and relief, equity courts are always solicitous to work out the equities and justice of the cause. The extraordinary nature of the remedy by injunction calls for a particular- and careful application of this guiding principle, and it is safe to say that rarely will injunctive relief be granted when it would operate inequitably or contrary to the real justice of the case. Injunctions are never granted when they are against good conscience, or productive of hardship, oppression, injustice, or public or private mischief, and it may be said to be the duty of the court whose jurisdiction is invoked to secure injunctive relief, when considering the application, to consider and weigh the relative convenience and inconvenience and the comparative injuries to the parties and to the public which would result from the granting or refusal of the injunction sought.” 28 Amer.Jur., Injunctions, § 52, pp. 548-549.

In City of Lubbock v. Stubbs, Tex.Civ.App., 278 S.W.2d 516, on final judgment the trial court dissolved the temporary injunction previously granted and entered judgment against the City in a matter involving a claimed violation of certain ordinances. 'The City appealed and sought the issuance of a temporary injunction by the Court of Civil Appeals to restrain Stubbs from further violating the provisions of the City building code. By a divided vote the Court held that it was without jurisdiction because: (1) the order was not necessary to enforce the court’s jurisdiction; (2) the relator did not exhaust his legal remedies in the trial court; and (3) did not request the trial court to supersede the judgment dissolving the temporary injunction.

In the case of Yett et al. v. Cook et al., 115 Tex. 175, 268 S.W. 715, 718, 281 S.W. 843, the contention was made that the trial court was authorized to issue an injunction by Subdivision 2 of Article 4643, which “provides that an injunction may issue ‘where, pending litigation, it shall be made to appear that a party [is] doing some act respecting the subject of litigation [or otherwise], or is about to do some act or is procuring or suffering the same to be done in violation of the rights of the applicant, which act would tend to render the judgment ineffectual.’ ” In answering this contention, the court said:

“It is apparent from this that in order for a judge of a court to have power to issue an injunction pending litigation, the acts sought to be enjoined must have two qualities, first, they must ‘violate some rights of the applicant’; and second, these acts must ‘tend to render judgment ineffectual.’ It is plain that the acts of the respondents here in giving a supersedeas bond did not ‘violate some rights of the *474applicant’, for the reason that the statute gave the respondents the right of supersedeas. The act of filing the supersedeas bond was a lawful act, and did not * * * 'tend to render judgment ineffectual’, except in a manner provided by law * * *.”

While Article 4643 is not applicable to this Court, it appears that the limitation placed on the general equitable powers of the trial court in granting injunctive relief against a party to a pending action in aid of its jurisdiction should be persuasive as to the authority of this Court to grant in-junctive relief against one not a party for the purpose of enforcing our jurisdiction.

Relators ask that we enjoin stockholders, who do not appear to have violated any right of the applicants, from exercising rights given them by statute and the bylaws of the corporation. The meeting for election of directors is called by the by-laws which specify the time, place, and date for the annual stockholders meeting and that at such meeting the election of directors shall be the fourth item in the order of business. The by-laws provide that notice of each regular meeting shall be given to stockholders, but that “the failure to give notice, or irregularity in the notice, of any regular annual meeting shall not invalidate such meeting or any proceedings thereat.” (Emphasis added.) In view of the confused state of affairs of this company, it does not seem that the action of respondents in soliciting proxies and making known their intention to exercise their right to appear at the annual stockholders meeting and vote for directors of the corporation would violate any legal right of relators, nor would the probability that respondents would be successful in electing their candidates tend to render the judgment ineffectual, “except in a manner provided by law.”

This Court does not have jurisdiction to order an injunction for the purpose of preventing loss or damage to a party to an appeal pending in this Court, or to grant an originál injunction. Madison v. Martinez, Tex.Civ.App., 42 S.W.2d 84; Taylor v. American Trust & Savings Bank of El Paso, Tex.Civ.App., 265 S.W. 727; Texas Electric & Ice Co. v. City of Vernon, Tex.Civ.App., 254 S.W. 503.

It seems an insufficient reason for the granting of an injunction by this Court that a failure to do so would probably result in the case on appeal becoming moot. Relators’ rights are entitled to be protected from a wrongful invasion. The proper forum in which to seek such protection is the District Court, where adequate facilities for conducting hearings are provided and officers are available to serve citations, preserve testimony, and execute orders. In Houtchens v. Mercer, 119 Tex. 244, 27 S.W.2d 795, the Supreme Court declined to take jurisdiction because the relator had not first applied to the Court of Civil Appeals for the relief to which he was entitled. It would appear that the same principle is applicable here. 21 C.J.S. Courts § 312, pp. 563-564.

Ordinarily an injunction will not issue unless the relator can show that respondent threatens some action which involves a “right” of relator. “A right, as the word is used in this Restatement, is a legally enforceable claim of one person against another, that the other shall do a given act or shall not do a given act.” Restatement, Conflict of Laws, § 42b; Property § 1. “The word ‘right’ is broad enough to embrace whatever may be lawfully claimed.” Bankers Home Building & Loan Ass’n v. Wyatt, 139 Tex. 173, 162 S.W.2d 694, 696 “A right [is] * * * a claim recognized or secured by law * * * ” Mellinger v. City of Houston, 68 Tex. 36, 3 S.W. 249, 253.

Here we are asked to prevent the exercise on the part of respondents of a “right” to participate in an election for directors of a private corporation for the sole purpose of preserving the “right” of relators to serve as directors of the corporation, in the event they are finally adjudged to *475be the duly elected directors, for a sufficient length of time to call a special elec-, tion, which they may supervise and participate in, for the election of their successors. This does not appear to he that sort of substantial right entitled to protection of this Court to the extent of enjoining the performance of conduct legal in itself, as a result of which respondents, the general public doing business with the corporation, other stockholders in the corporation, and the corporation itself, may well suffer irreparable damage.

I concur in the opinion of Justice WER-LEIN, and in the disposition thereby made of the application for injunction.