Coleman v. Goyne

| Tex. | Jul 1, 1873

Walker, J.

The injunction in this case was granted on a petition which showed no equity, and was properly dissolved on motion. But whether all the proceedings in the case have been regular and authorized by law, requires some inquiry.

The defendant had obtained a judgment for a large amount of money, against the plaintiff in error, with a decree foreclosing a vendor’s lien. The land was advertised for sale under this decree, for the purchase-money, when Coleman sued out his injunction, and the only ground assigned in the petition for injunction was that the plaintiff had a defense to nearly one-third of G-oyne’s judgment, which he had neglected to set up in the original action, because he supposed that Goyne would allow his claim after judgment, in which he had been deceived.

The injunction was dissolved at chambers, and the court, believing it had been obtained merely to delay the collection of the judgment, gave the defendant in error five per cent, damages, and rendered a judgment for debt and damages against the plaintiff in error and his securities. The record does not show that the plaintiff in error demanded a further prosecution of the case on the merits. The final order was entered at the ensuing term of court.

The only errors assigned to the rulings of the District Court, demanding further notice in this opinion, are the 3d, 5th, 6th, and 7th. It is claimed that the court erred in dismissing the suit at the time that the injunction was dissolved; also that the court erred in giving damages, and that there was error in giving judgmerft against the securities on the injunction bond; and also that the court erred in rendering the judgment at the February term, 1872. We do not know how to reconcile these assignments for error. They contradict each other. If the judgment was rendered at the February term, 1872, then the probability is that it could not have been rendered on the 2d of December, 1871, at chambers. After dissolving the injunction, if the cause was continued over to the February term, and the judgment then entered in term time, we can see no error so far in the proceedings; but there are several entries in this cause, made in vacation, which are carried into the record, and go to show that a final disposition of the cause was made at chambers.

We are led to believe, after a careful inspection of this record, and an examination of the law on the subject (Articles 3934, 3935, 3936, 3937, and 3938, Paschal’s Digest), that the court erred, first, in attempting to determine the merits of the cause, and rendering judgment thereon in vacation. And if the court attempted to assess the damages, as might be done in a proper case, the law fixes the rate at ten per cent, on the amount released by the dissolution of the injunction, and in all other cases damages must be assessed by a jury. The judge in this instance not only dissolved the injunction, but dismissed the bill, and the only order made in term-time (if any were made), was simply to record the proceedings had in vacation. There was error in dissolving the injunction without requiring of the defendant the bond called for in Article 3937, Paschal’s Digest.

The judgment of the District Court, for the reasons given, is reversed, and the cause remanded.

Eeversed and remanded.