#### INTERNATIONAL ASS’N OF MACHINISTS, LOCAL UNION NO. 1488 et al. v. FEDERATED ASS’N OF ACCESSORY WORKERS et al.

No. 2255—7350.

Commission of Appeals of Texas, Section A.

June 28, 1939.

Sewall Myer, of Houston, for plaintiffs in error.

Fulbright, Crooker & Freeman and Es-car R. Wren, all of Houston, for Federated Ass’n.

Fulbright, Crooker & Freeman, Charles A. Perlitz, Jr., and Whitfield H. Marshall, all of Houston, for Beard & Stone.

' HICKMAN, Commissioner.

Defendants ’ in error, except Beard and Stone Electric Company, intervenor, filed this suit in the trial court, against plaintiffs in error for a permanent injunction restraining plaintiffs in error from picketing the establishment of Beard and Stone Electric Company; from congregating or *283•assembling’ in the vicinity thereof; from injuring or making threats of violence -against them, or any of them, and from in any manner intimidating, harassing or attacking them. Pending the trial of the ■case on its merits they sought and were •.granted a temporary injunction in accordance with the prayer of their petition. An appeal from the order granting' the temporary injunction was prosecuted by plaintiffs in error to the Court of Civil Appeals, which court affirmed the trial court’s judgment, thereby leaving the temporary 'injunction undisturbed. 109 S.W.2d 301.

After the application of plaintiffs in er■ror for a writ of error was granted, and •while the case was pending here, defendants in error filed in the trial court a motion to dismiss the cause, which motion was granted, and an order was entered ■ dismissing same.

Defendants in error have filed a motion in this .court praying that the appeal herein be dismissed. That motion was submitted along with the case. Plaintiffs in error contest the motion and say that, in lieu of the order sought by defendants in error, this court should enter its order •dissolving the temporary injunction “and then dismiss this appeal and tax all costs * * * against the defendants in error.” .As we view the case, neither • party has •prayed for the order which it is the duty of this court to enter. The motion to dis•miss the appeal is accordingly overruled.

While the trial court lost juris•■diction of the temporary injunction when .the appeal therefrom was duly perfected, it did not lose jurisdiction of the main case .then pending in that court. It acted well within its powers in dismissing the cause •upon motion -of defendants in error. .Since the temporary injunction by its ■terms, and by operation of law as well, could not continue in force after the main case was finally disposed of, the effect of the order of the trial court dismissing the main case was to terminate such injunction. The whole basis upon which it rested was removed and it automatically ceased to exist. The case before this court, that is to say, the ■ temporary injunction case, has therefore become moot. No temporary injunction exists, and it follows that the question of whether it was rightfully issued is but an abstract question of law with which this court will not deal.

The rule has been long established in this jurisdiction that, when a case has become moot, the proper order to be entered by the appellate court is one dismissing the case, and not one dismissing the appeal. To dismiss the appeal would be to leave undisturbed the judgment of the lower court and thereby, in effect, affirm same without according to the appealing, parties a hearing upon the merits of their appeal. McWhorter v. Northcut, 94 Tex. 86, 58 S.W. 720; Thomason v. Seale, 122 Tex. 160, 53 S.W.2d 764; Sterling v. Ferguson, 122 Tex. 122, 53 S.W.2d 753; Taylor v. Nealon et al., Tex.Sup., 120 S.W.2d 586; Iles v. Walker, Tex.Sup., 120 S.W.2d 418; Cisco Independent School District v. Dudley, Tex.Civ.App., 53 S.W. 2d 639.

This case falls within the general rule. While the main case has not come before us, a case, that is, the temporary injunction case, has come before us, and, since that case has become moot, it should be disposed of just as any other moot case. All costs accruing in the case before us in all courts will be-taxed against defendants in error, who were plaintiffs and intervenor in the trial court.

The case is dismissed.

Opinion adopted by- the Supreme Court.