252 S.W. 476 | Tex. Comm'n App. | 1923
A writ of sequestration was issued by the clerk of the district court of Coleman county in the case of Beck v. Priddy, pending in that court, and same was turned over to the sheriff of Coleman county to be levied upon certain lands described therein. The defendant Priddy, as plaintiff, then instituted this suit by filing his petition for an injunction, in the district court of that county, against Beck and the sheriff of Coleman county, seeking a writ of injunction restraining the sheriff from levying said writ and from ejecting him from the possession of 170 acres of said land.
In his petition for the injunction Priddy alleges substantially: The filing of the original suit by Beck in the district court of Coleman county on the 27th day of January, 1923; that said suit was an action of trespass to try title, brought by Beck, against him (Priddy) to recover described lands aggregating 3,647.70 .acres of land, of the aggregate value of $57,915.50; that in so far as said suit seeks to recover the title and possession to the lands and premises over and above 170 acres, which 170 acres is later described by metes and bounds, same was fictitious and fraudulent; setting up a verbal lease contract between himself and Beck, of ,the 170 acres described in the petition for injunction by metes and bounds, for the year 1923; denying that he had ever leased any ■"other lands from Beck; that he had never at any time asserted, and does not assert now, any interest, title, or ownership in the balance of the 3,647.70 acres sued for by Beck in the original suit;' that Beck’s purpose in bringing the suit for all of the land, was to prevent him from retaining possession of the 170 acres, house, and outhouses, vfrith the fraudulent purpose of so enlarging the amount in controversy and the value of the lands as to keep him from replevying and securing possession of the lands and premises he had in fact leased, because he believed that Priddy would be unable to make and ex
“Wherefore, the premises considered, your petitioner herein prays your honor to grant the most gracious writ of injunction, enjoining and restraining the said Henry Beck and the said Dick Pauley [sheriff], and each of them, from objecting, or attempting to eject, dispossess, from the lands and premises claimed by him as described herein, or hinder your petitioner herein in the possession thereof or from ejecting him from the possession of said lands and premises fully described herein as claimed by him and described in said bond, and for such other and further orders and relief, both at law and - in equity, to which he will be entitled; and will ever pray.”
The trial court, upon presentation of this petition, without hearing evidence, but upon an inspection of the petition, ordered a temporary writ of injunction to issue. Beck appealed from this interlocutory judgment to the Court of Civil Appeals, and that court affirmed the trial court’s judgment. 249 S. W. 1105.
In view of this temporary injunction having been granted ex parte and without evidence, as appears from the order of the trial court, the questions presented to us recur solely upon the petition and the sufficiency of same. There are many errors assigned in the application for writ of error, but in our opinion the decision of the question, Did the district court err in granting the injunction? we think is a controlling one, and the only one necessary to he discussed.
If the plaintiff, Priddy, had a clear, complete, and adequate remedy at law, and if his petition fails to show a cause of action because of the allegations therein disclosing that he had a legal remedy, and further that said petition presents no equitable ground for relief, then it necessarily follows that the trial court erred in granting the temporary injunction. By an inspection of the petition for injunction herein, a substantial analysis of which is given above, it will appear that Priddy’s claim of right to enjoin rests, first, upon his claim of right to replevy a portion of the land in controversy in the original suit; and, second, upon the refusal of the sheriff to permit him -to re-plevy only such portion. In our opinion, conceding his right to replevy, which we do not now decide, we think the refusal of the sheriff to permit him to replevy is only a violation of a legal right on a par with the claimed original wrong done him by Beck in having the property sequestered. Priddy, being denied the right to replevy, is left where the original sequestration found him. He hás under either phase of the question an action for damages against Beck. He nowhere alleges that Beck is insolvent and unable to respond in damages, or that the sequestration bond given by Beck is insufficient, either in responsibility or legal form, to protect him against loss, or that he will suffer irreparable damage or injury if the sheriff is not compelled to accept his replevy bond and turn the property over to him. He simply draws a picture of a contumacious party plaintiff and sheriff refusing to let him exercise his legal rights, for which wrong he can be abundantly compensated in damages, if he has in fact been wronged.
This section of the Commission of Appeals, in an opinion by the writer, in the case of Hill v. Brown, 237 S. W. 252, fully discusses the question decided above, and, as we "have had no occasion to recede from our holding in that case, we refer to it and the authorities therein cited to support our holding, in
In view of our holding in the case we do not deem it necessary to discuss the opinion of the Court of Civil Appeals rendered in this case. The fundamental difference between the view that court takes of the case and the view we take of it, upon the question indicated above, sufficiently indicates our position upon the controlling question, without discussing the other errors assigned.
We therefore recommend to the Supreme Court that the judgments of the trial court and the Court of Civil Appeals be reversed, and that judgment be here rendered, denying the application for writ of injunction.
Judgments of the Court of Civil Appeals and District Court both reversed, and judgment rendered denying the injunction.