| Tex. | Jul 1, 1853
Rehearing
PETITION FOR RE-HEARING.
The appellants in the above entitled cause respectfully petition the Honorable-Supreme Court for a re-hearing- in said cause. They do so for the reason, among others, that the honorable judge who wrote out the opinion was not put in possession of a copy of the brief furnished the court, and owing to that circumstance, in all probability, the record seems to have been misconceived.
It is suggested by appellants that the controlling points on which the cause was carried to the Supreme Court have not been adjudicated; and they therefore respectfully pray that they may again be heard in said cause, and that they may be permitted to furnish briefs anew.
Respectfullv submitted.
SHERWOOD & GODDARD,
Of comise! for appellants..
l'/hilst the appeal from the judgment quashing the levy and return was pending in this court, no other execution could legally have issued, nor could there have been a new levy made. The execution issued and levied on the cattle was invalid, aud ought to have been quashed, aud the plaiutiffs in the execution enjoined from issuing another, until the appeal had been disposed of by this court. After the- judgment of tiie District Court had been affirmed by this court, tiie plaintiffs in the execution could then have sued out an alias. The suing out another execution whilst the appeal was pending was sufficient ground for relief.
Tiie court below seems to have taken a correct view of tiie illegality of the execution so sued out; and, by its decree, quashed it; aud so far the decree is right; but there was no ground for decreeing judgment against tiie security iii tiie injunction bond, aud against the appellant, for the amount of the judgment and costs. The injunction was properly dissolved after the affirmance of the judgment of the District Court, quashing the levy and return of the first execution, had been rendered by this court. It was error to render the j udgment against the appellants and the securities for the amount of the original judgment. That judgment had never been enjoined, and the error of the plaintiffs in tiie oxecutiouhad created the necessity for the appellants’ instituting these proceedings. Tiie injunction would never have been asked for nor granted if (he second execution had not been unlawfully sued out.
The wrong having been committed by the plaiutiffs in the execution, it is no more than right that they should pay ail the costs of such wrong. We believe, therefore, that tiie District Court erred in its decree; and that for such error, the decree must be reversed, and rendered as the District Court ought to have rendered it. The verdict of the jury is thrown out of consideration of the case as wholly unimportant, and founded upon a question that they had nothing whatever to do with, it being on the legality of tiie second execution which, upon the record, was a question of law, and not of fact.
It is therefore ordered, adjudged, and decreed, that so much of the decree of the District Court as quashed tiie execution, and the levy on tiie cattle made by the same', and so much of the said decree as dissolved the injunction, is affirmed; and it is ordered, adjudged, and decreed, that so much of the said decree and judgment as rendered a judgment against the appellants and their sureties in tiie injunction bond, be, and tiie samé is hereby reversed and annulled ; and it is further ordered, adjudged, aud decreed, that so much of the said decree as decreed the costs to be paid by the appellants, be also reversed; and it is further decreed that the appellants recover of the appellees all costs of this court and of the court below; and it is ordered that this decree'be certified to the court below for its observance.
Reversed and reformed.
Note 26. — Prewitt v. Everett, post 283; Pennell v. Lovett, 15 T., 265. The judgment of the court refusing a continuance will not be revised, unless the party asking a reversal on that ground, has reserved the point by a bill of exceptions. Campion v. Angier. 16 T., 93; Parker v. McKelvain, 17 T., 157; Dangerfield v. Paschal, 20 T., 536; Harrison v. Cotton, 25 T., 53; McMahan v. Busby, 29 T., 191.
Lead Opinion
The only ground for relief in the petition for an injunction grows out of the Iev3r upon tlie slave pointed out to the sheriff by appellants’ intestate. If the levy had been valid and was on property sufficient to satisfy the execution so far as the defendant in the execution was concerned, it would' have been satisfaction; but if the defendant had failed to make a levy and his neglect had been prejudicial to the rights of the defendant in the execution, it would have been no matter of concern to the plaintiff in the execution: it would have been no satisfaction of the execution; but it would have been a matter to be adjusted between the defendant and the sheriff. The levy was quashed and the defendant in the execution appealed to this court. Pending the appeal this injunction was obtained. -And it seems to have been intended by the court, that it should only operate during tlie pending of the appeal on the judgment quashing tlie return of tlie levy upon the negro. “ On the man“date of the Supreme Court,” showing an affirmance of the judgment, tlie court might and ought to have dissolved the injunction and dismissed the petition; because, the only question that afforded any pretext of .equity in it-had been decided by the Supreme Court adversely to the petitioners. But, on the claim of a jury trial by the appellants it was awarded to them ; and then the court charged tlie jury that tlie matter relating to tlie levy of the execution had been settled by the Supreme Court; and that it was not before them. In tiffs there was no error. It ought to have been settled without the intervention of a jury, because no question of fact was presented; yet, as it resulted in tlie same, tlie verdict being for tlie defendant, and the judgment followed, it Is only an irregularity that can surely afford no cause of complaint to the appellant. The judgment is affirmed.