west boundary line of said survey in said patent calls for 3,338 varas, while said line is in fact 4,071 varas, as found upon the ground; and that the land included within the bounds of said patent, when running to the corners of the adjacent surveys called for therein, will make said lines as above mentioned. These plaintiffs further show to the court that the section of country in which the above-mentioned surveys of land are located is an open prairie country, and that said surveys are located by calls for natural objects on the east and west, and for older, well-established surveys, the lines and corners of which are found upon the ground, which said surveys are located upon the east, west, south, and north of the abovementioned surveys; that by reason of the calls for these older and well-established surveys a portion-and the greatest number-of the surrounding surveys to plaintiffs' land are short in quantity, and the defendants have encroached upon plaintiffs' land from all sides and directions, thereby completely ousting plaintiffs from this land; and that, in order to permanently and finally settle these plaintiffs' title to the land herein described, which is owned and claimed by them, it will be necessary for this court to direct a survey of the various surveys mentioned above, and to establish the respective corners of each with reference to the older surrounding surveys, and with reference to each other, and with reference to the land claimed by these plaintiffs. And these plaintiffs pray this court for such an order, and that the lines and boundaries of all of the above-mentioned surveys be established and marked and laid out upon the ground; and that the lines and corners of the land hereinbefore described as being that owned by these plaintiffs be established upon the ground, and that the defendants be forever barred from claiming the same, or any part thereof.' "All the defendants answered except Augusta Martens and Nels Thompson, and upon the trial in the court below judgment was rendered for the plaintiffs against all of the defendants for the title and possession of the tract of land sued for, and fixing the boundaries of said land as prayed for. As fixed by this judgment, the boundaries of plaintiffs' land include land on the W. C. R. R. survey No. 2, claimed by the defendant C. H. Kinney, and on the S. T. Champney survey No. 93, claimed by the defendants John A. Clauson, Joe Stansey, Joe Wolick, Jr., Stephen Wolick, and W. R. Hollengsworth. None of the land claimed by the other defendants is Included within the boundaries of plaintiffs' land as fixed by this decree. From this judgment the six defendants last above named appeal to this court, and, in order to perfect their appeal, filed a bond payable to the plaintiffs and all of the other defendants who were thus made parties appellees in said appeal. The plaintiff J. L. Williams also gave notice of appeal from said judgment, but filed no bond and no cross-assignments of error. The other plaintiffs did not appeal. "Upon the hearing on appeal in this court the judgment of the court below was reversed, and judgment rendered for the appellants, fixing the boundaries of their land as claimed by them, and adjudging that plaintiffs take nothing as against them. As to the other defendants who had not ap pealed the judgment of the court below was undisturbed. Our opinion on this appeal is found in 66 S. W. 702. After the mandate on this appeal had been filed in the court below, the plaintiffs sued out a writ of error against the defendants who had not appealed from the judgment, and who were co-appellees with plaintiffs on the appeal of the defendants Clauson and others. The defendants in this writ of error have filed a motion to dismiss same on the ground that the former appeal was res adjudicata of all matters involved in this suit as between all of the parties to that appeal, and that it would, in effect, be granting plaintiffs in error the right to two appeals from the same judgment to allow them to prosecute this writ. "Question: Should the motion to dismiss be sustained on the ground stated? "The bond filed by plaintiffs in error is conditioned as follows: 'Now, therefore, know all men by these presents, that we, J. L. Williams, O. M. Pudor, and Emily Pudor, as principals, and W. A. H. McCawley and Wm. A. Wilson, as sureties, acknowledge ourselves to owe and be indebted to W. E. Wiley, Eric Peterson, Andrew Peterson, S. O. Peterson, Henry Hahl, G. Lindstredt, John Johnson, A. J. Bratten, Andrew J. Johnson, John Larsen, Niles Lindburg, and Emma Larsen, conditioned that J. L. Williams, executor of the estate of Larissa Williams, O. M. Pudor, and Emily Pudor, who are styled "plaintiffs in error," shall prosecute their writ of error with effect, and shall pay all costs which have accrued in the court below and which may accrue in the court of civil appeals and the supreme court.' "Question: Is this bond sufficient to give this court jurisdiction of this cause, so as to authorize it to allow a new bond to be filed under article 1025 of the Revised Statutes?" 1. The motion should not be sustained upon the ground stated. The certificate, in connection with the report of the former decision referred to, indicates that the court did not adjudicate any controversy between the plaintiffs in error and any of the defendants except those who were appellants in that proceeding. We are not called upon to determine what would have been the effect had the court, upon the record then before it, affirmed the judgment of the district court, since the court evidently treated the case as one involving severable controversies, and the appeal as bringing before it only those existing between the plaintiffs and the defendants against whom the judgment of the district The court went, and to a determination thereof the judgment was expressly restricted. question now is not what the court might have done, but what it did. The determination made as to the character of the action, the scope of the appeal, and the proper judgment to be rendered is, so far as we can see, as conclusive as is the decision upon any other point involved. When the court thus determined that the issues between the plaintiffs and the defendants who had not appealed were not before it for adjudication, it expressly refrained from deciding them, and the contention that this was an adjudication of those issues is a contradiction of the decision on that point. If it were conceded that power existed in the court to render a judgment which would have finally determined all questions between all parties, it is still true that such judgment was not rendered. At least, we understand the certificate to so state. The rule of law applicable to such a judgment is stated in Teal v. Terrell, 48 Tex. 508, while it is not controverted that, as a general principle, the judgment or decree of a court of competent jurisdiction is not only final as to the matters actually determined thereby, but also upon all matters properly involved in the issue passed upon and determined by the court, and that all matters put in litigation in a previous suit, and which could have been adjudicated therein, are concluded by it. Foster v. Wells, 4 Tex. 101; LaGuen v. Gouverneur, 1 Johns. Cas. 436, 1 Am. Dec. 121. But certainly it cannot be so held where the record clearly shows that the matter in question was not in fact passed upon or adjudicated by the court. James v. James, 81 Tex. 380, 16 S. W. 1087; Groesbeck v. Crow, 91 Tex. 77, 40 S. W. 1028. Not only did the court restrict its action to the issues raised between the appellants therein and the plaintiffs, but virtually adjudicated that the appeal brought up nothing else. This was, in effect, an adjudication that the present de fendants in error were not entitled to any action upon the issues between them and plaintiffs. 2. The second question is answered in the affirmative. The statute provides: "When there is a defect of substance or form in any appeal or writ of error bond, on motion to dismiss the same for such defect, the court may allow same to be amended by filing in the said court of civil appeals a new bond, in such terms as the court may prescribe." Rev. St. 1895, art. 1025. This seems to allow the curing of defects of every character in such bonds, and we can see no good reason why, under such a statute, a new bond may not supply the omission of the penalty in the first as well as any other defect. It is true the statute requires a bond in an amount, and that it has been heretofore held that the giving of a bond is essential to the jurisdiction of the appellate court; but it can no longer be held that such jurisdiction cannot be made to attach by a bond defective in Hugo v. Seffel, 91 substantial particulars. Tex. 414, 49 S. W. 369. If that which is filed is a bond, though a defective one, and appears to be an attempt to comply with the statute regulating writs of error, the jurisdiction necessarily attaches, because the court is empowered to entertain the case, and permit the party to comply with the law. We think it cannot be successfully denied that the instrument in question is a bond. It is payable to and signed by the parties and sureties, and has the condition required by the statute, and binds the obligors at least to pay the costs which the statute requires them to obligate themselves to pay. The defect is the mere absence of a penalty double the amount of such costs. That instruments which do not bind the obligors in any sum stated as a penalty may yet be bonds is recognized by some of our statutory pro visions, as well as the decisions under them. Rev. St. arts. 2256, 3241; Hicks v. Oliver, 71 Tex. 778, 10 S. W. 97; Munzesheimer v. Wickham, 74 Tex. 639, 12 S. W. 751. The bond shows on its face that it was filed as an attempt to comply with the statute in order to prosecute the writ of error, complies in most respects with the statute, and must be held sufficient, under the liberal provision quoted, to give jurisdiction to the court, and to entitle plaintiffs in error to file a new one. It may, indeed, be seriously doubted whether or not, with such a statute in force, it should longer be held that the jurisdiction of an appellate court at all depends on the giving of a bond. RIGGINS v. THOMPSON et al. (Supreme Court of Texas. Dec. 22, 1902.) INJUNCTION-RESTRAINING ORDER-EXPIRATION-COURT OF CIVIL APPEALS -JURISDICTION. 1. A district judge, in assuming jurisdiction of an injunction suit properly cognizable in another district, issued an order citing defendants to appear before the judge of such other district at a certain time to show cause why permanent injunction should not issue, and directed the clerk to issue a restraining order pending such hearing. Defendants could not have been required to answer the petition on the merits at the term at which the citation was made returnable. Rev. St. arts. 2993, 2994, provide that on petition for injunction, if it shall appear to the judge that applicant is entitled to the writ, he shall order the clerk to issue the injunction upon such terms and under such limitations as may be specified. Held, that the order was a mere restraining order, which only remained in force until the hearing on return to the citation, so that, on its dissolution at that hearing, it was not continued in force by an appeal on a supersedeas bond. 2. An order of the court of civil appeals commanding respondents to refrain from further disobedience of a temporary restraining order issued by a lower court, and from any interference with the jurisdiction of the court of civil appeals, can only operate to protect the jurisdiction of that court, and is limited in its operation until the determination of the case there, and does not continue in force until the determination of a writ of error from a judgment of the court of civil appeals affirming a judg ment dissolving the temporary injunction. Suic for injunction by J. W. Riggins against W. H. Thompson and others. On motion for rule for contempt for disobedience of a restraining order. Motion overruled. W. S. Baker, Scarborough & Kimbell, and W. L. Radney, for plaintiff. West & Cochran, Brooks & Shelley, and Allan D. Sanford, for defendants. GAINES, C. J. This is a motion to punish the respondents, one of whom is the city attorney, and the others members of the city council, of the city of Waco, for contempt in disobeying an injunction, and to command them to rescind their action in removing the plaintiff in the motion from the office of mayor of that city. The nature of the proceeding will more fully appear by a brief statement of the facts, as shown by the motion and the record in the principal case: Riggins was mayor of the city of Waco; having in April, 1902, been elected to that office for the term of two years. With the view of removing him from office, on the 11th day of September, 1902, certain of the respondents filed charges against him before the city council, accompanied by a resolution for his removal from office, and caused him to be cited to appear and answer the charges. On the 16th day of the same month he presented to the Honorable William Poindexter, judge of the Eighteenth judicial district of the state, a petition praying an injunction restraining the city council from proceeding with the trial upon the charges as presented. Thereupon Judge Poindexter indorsed his fiat upon the petition as follows: "In Chambers. Meridian, Texas, September 16th, 1902. It having been represented to me that Judge Scott, of the Fifty-Fourth district court, is absent from the state; that, in the opinion of counsel for plaintiff, under the peculiar circumstances of this case, Judge Surratt, of the Nineteenth district court, is disqualified from sitting in this case,-I take jurisdiction, and hereby direct the clerk of the Fifty-Fourth district court to file this petition, and cite the defendants to appear before Judge Scott, Judge of the Fifty-Fourth district court, at the courthouse in Waco, on Friday, the twenty-sixth (26th) day of September, then and there to show cause why permanent injunction should not issue, and to issue restraining order to defendants, as herein prayed, pending such hearing. Petitioner to enter into bond as conditioned by law in the sum of five hundred dollars ($500)." The petition was on the 18th of September filed in McLennan county, in the Fifty-Fourth district court, of which Judge Scott was the duly elected and qualified judge. Bond having been given, the clerk, in pursuance of the fiat, issued the writ of injunction, which was by the sheriff immediately served. Thereupon, on the same day, a motion was filed in that court for a dissolution of the restraining order for want of equity in the bill, and, the motion having been heard, the order was dissolved. The plaintiff having declined to amend, the petition was dismissed. Thereupon the plaintiff appealed to the court of civil appeals. While the appeal was pending, and during the vacation of that court, a motion was presented to two of the justices of that court representing that the appellees were about to violate the injunction which had been ordered to be issued by the judge of the Eighteenth judicial district, and praying that they be enjoined from so doing. After a hearing the motion was granted, and a restraining order was issued, commanding the respondents to refrain from further disobedience "of the order granting the temporary injunction, and from any interference with the jurisdiction of this court [meaning the court of civil appeals] during the pendency of this cause." On the 29th day of October the court of civil appeals decided the cause, and affirmed the judgment of the trial court. A motion for a rehearing was seasonably filed, and was overruled on December 3d. On the next day the appellant, Riggins, filed in this court his application for a writ of error to the court of civil appeals. On the same day, but at a later hour, the city council proceeded with the trial of the charges against the mayor, and, after hearing the evidence, passed a resolution removing him from office. Proceeding upon the theory that the restraining order of Judge Poindexter was a continuing one, and that the order of dissolution was suspended by the appeal, and also that the injunction issued by the judges of the court of civil appeals continued in force until the application for the writ of error had been disposed of in this court, this motion was filed. The questions, therefore, are: (1) Was the order of Judge Poindexter a continuing order, which was kept in force by the appeal, or was it merely a temporary provision, which was to have effect only until the day named therein for a hearing, or until it could be heard in the district court of the Fifty-Fourth district? (2) Did the injunction of the court of civil appeals have any effect after the final disposition of the case by that court? And (3) did the jurisdiction of the supreme court attach upon the filing of the application for the writ of error, so that, in the event either injunction had not expired, it became the duty of this court to enforce it? We understand that, under the practice of the American courts, three species of injunctions may be issued: (1) A restraining order, which is defined to be: "A restraining order is an interlocutory order made by a court of equity upon an application for an injunction, and as part of the motion for a preliminary injunction, by which the party is restrained pending the hearing of the motion." Bouv. Law Dict. (2d Ed.). (2) One which is intended to operate, and which does operate unless dissolved by an interlocutory order, until the final hearing. And (3) a perpetual injunction, which can be properly ordered only upon the final decree. Our practice is regulated by the following provisions of our Revised Statutes: "Art. 2993. If, upon the inspection of such petition, it shall appear to the judge from the facts stated therein that the applicant is entitled to the writ, he shall indorse on such petition or annex thereto his written order directing the clerk of the proper court to issue the writ of injunction prayed for, upon such terms and under such modifications, limitations and restrictions as may be specified in said order," etc. "Art. 2994. Upon application for any writ of injunction, if it appear to the judge that delay will not prove injurious to either party and that justice may be subserved thereby, he may cause notice of such application to be served upon the opposite party, his agent or attorney, in such manner as he may direct, and fix a time and place for the hearing of such application." It is obvious that under these articles the judge is authorized to place upon a preliminary injunction such limitations as to the time of its operation as he may see proper. The order issued in the case of Ft. Worth St. Ry. Co. v. Rosedale St. Ry. Co., 68 Tex. 163, 7 S. W. 381, was of the first class. In that case the order distinctly declared that it was to operate only until the hearing, and, the injunction having been dissolved upon the final trial, it was held that an appeal upon a supersedeas bond did not continue it in force. In the case of Gulf, C. & S. F. Ry. Co. v. Ft. Worth & N. O. Ry. Co., 68 Tex. 98, 2 S. W. 199, 3 S. W. 564, the order of the judge expressly restrained the defendants from doing the acts complained of until the final determination of the suit. Since the suit was not terminated until the appeal had been heard and determined, it was held that, although upon the trial in the district court the injunction had been dissolved, an appeal which superseded the judgment kept the injunction in force until the appeal was determined, and that the supreme court, to which the case, under the then existing law, was directly appealable, and to which it had been appealed, had the power to enforce it. The question then presents itself, under which of the rules respectively announced in the cases cited does the injunction under consideration fall? This is to be determined by the language of the judge's fiat. It is apparent from that language that the judge of the Eighteenth judicial district considered that, since he was granting an injunction in a case which was triable and which was to be brought in another district, he was performing a very delicate duty, and that he proposed to go no further than was necessary to protect the rights of the plaintiff in the suit. Consequently he directed the clerk of the district court of the Fifty-Fourth judicial district to file the petition, and to cite the defendants to appear before the judge of that court on the 26th day of September, 1902, to show cause why a permanent injunction should not be granted, and at the same time to issue "a restraining order to defendants * pend ing such hearing." That the hearing meant was the hearing of the prayer of the petition to grant an injunction to remain in force during the pendency of the suit is apparent from the fact shown by the record in the principal case, that the district court for the Fiftyfourth judicial district was in session two days after the fiat was indorsed upon the petition. The statute provides that the fall term of that court should begin on the third Monday in September. It could not have begun earlier than the 16th. The defendants were not, under the law, required to answer at that time the petition upon its merits, unless served 10 clear days before the beginning of the term. They could not have been called upon to answer the case and go to trial at that term. It is obvious, therefore, that the judge did not attempt to fix a time in which they were required to answer as to the whole case, but merely to name a date at which they should appear and show cause why an injunction, which was to operate until the final determination of the suit, should not be granted. Nor do we think the language of the flat reasonably admits of a different construction. The clerk was required to issue a restraining order "pending such hearing." We think this means the same as if the words had been "until and pending such hearing,” and that the intention was to limit the operation of the order until such time as the parties could be heard upon the issue whether, under the allegations in the petition and answer, should one be filed, an injunction, to remain in force until the final disposition of the case, should be granted. This construction is also indicated by the words employed in the fiat. It is true that a "restraining order" is an injunction, but the terms are commonly used to designate a temporary injunction, as distinguished from an injunction which is to remain in force during the pendency of the suit. The learned judge, in effect, directs that a restraining order shall be granted until it is determined whether a permanent injunction shall issue, which means an injunction to remain in force until the final determination of the suit, and not an injunction granted upon the final trial, which is called a "perpetual injunction." We therefore conclude that the injunction in this case was intended to operate for a fixed period only, and that it comes within the principle acted upon in the case of Ft. Worth St. Ry. Co. v. Rosedale St. Ry. Co., above cited. As to the injunction issued by the judges of the court of civil appeals, we need only say that they were without power to issue an injunction, except to protect the jurisdiction of that court, and that the injunction grant ed by them is expressly limited in its operation until the determination of the case in that court. Since, in our opinion, both the restraining order of Judge Poindexter and the injunction issued by the judges of the court of civil appeals had expired by their own limitation when the writ of error was filed in this case, there was no injunction in existence when the respondents proceeded to try the charges against Riggins, the plaintiff in this motion, and that therefore the motion should be overruled. This renders it unnecessary for us to decide whether, by the filing of the application for the writ of error, we acquired such jurisdiction over the case as to give us power and make it our duty to enforce obedience of the injunction, had one been in force. Accompanying the motion to punish the respondents for contempt is also a motion to compel them to rescind their action in removing the plaintiff from office, and to restrain them from further action in the matter until the determination of the cause in this court. Although a motion for a rehearing of the application for the writ of error is still pending in this court, it is obvious from what has already been said that this court can neither command the respondents to rescind their action, nor to desist from further action in the premises. The motion is overruled, and the rule against respondents is discharged. SPRADLING v. STATE. (Court of Criminal Appeals of Texas. Oct. 29, 1902.) ASSAULT-USE OF WEAPON-EVIDENCE-AP- 1. Where a recognizance on appeal does not state the amount of the fine assessed against defendant as required by Code Cr. Proc. art. 887, it is insufficient to support the appeal. On Rehearing. 2. Where an appeal was dismissed on the ground that the recognizance transcribed in the record was defective, but the defect was cured by a certified copy of the recognizance filed, showing it to be in compliance with the statute, the appeal will be reinstated, and considered on its merits. 3. Defendant went into the house, after threatening to shoot prosecutor, and took down a rifle, when prosecutor was not in the room, nor where he could see the act. The rifle was taken from defendant by his wife before he left the room. Held, that defendant was not guilty of an assault under a statute making it a simple assault to use a dangerous weapon in an angry or threatening manner with an attempt to alarm another. Appeal from Rains county court; W. H. Clendenin, Judge. T. C. Spradling was convicted of assault, and he appeals. Reversed. W. W. Berzette and B. M. McMahon, for appellant. Robt. A. John, Asst. Atty. Gen., for the State. 71 S.W.-2 BROOKS, J. Appellant was convicted of a simple assault, and his punishment assessed at a fine of $5. The assistant attorney general has filed a motion to dismiss the appeal on the ground that the recognizance is defective, in that it does not state the amount of the fine assessed against appellant, as required by article 887, Code Cr. Proc. An inspection of the record shows the motion to be well taken, and the motion is sustained. The appeal is accordingly dismissed. On Rehearing. (Dec. 11, 1902.) DAVIDSON, P. J. Under an information charging aggravated assault, appellant was convicted of simple assault, and fined $5. At a former day of this term the appeal was dismissed because of a defective recognizance transcribed in the record; but this defect has been cured by a certified copy of recognizance showing it is in compliance with the statute, agreed to by counsel. The cause is reinstated upon the docket, and will be considered on its merits. The state relies alone upon the testimony of the alleged assaulted party, who had rented land from appellant for the year 1902. After working a few days, he concluded to hire himself out to a neighbor, to assist in working his land for a few days. He says that when he informed appellant of this, appellant desired him to work for his (appellant's) brother-in-law, Dr. Cooper, and, upon his declining, appellant became very angry, and began cursing and abusing him; to which he replied that he did not want any trouble with appellant, but that he nor any other man had the right to curse and abuse him. Appellant said he would get his Winchester, and blow his brains out. That he went inside the house, and in the south room, took his Winchester, and worked the lever as though throwing a shell in it. There was a hall running through the house east and west, and a gallery on the east side. Witness was standing off the gallery in the direction of the gate in front of the house, and appellant was inside the south room, which opened in the hall. He says that, after he had worked the lever as above indicated, his wife, Mrs. Spradling, took the gun away from him, and that he (witness) went away. This is the state's case. Appellant's testimony shows that Spradling took the gun from the rack, and worked the lever to see if there was a cartridge in it. His wife came in the room at this juncture, and requested him to hand her the gun, which he did. And, further, defendant's testimony shows the position he occupied in the room rendered him invisible to the assaulted party. We do not believe the evidence justifies the conviction. The evidence is not sufficient to bring it within the terms of the statute which makes it a simple assault to use any dangerous weapon, or the semblance thereof, in an angry or threatening |