Dailey v. Wynn

33 Tex. 614 | Tex. | 1871

Walker, J.

Several interesting questions arise upon the record of this case, which are however not material to its decision; and although invited by counsel so to do, we shall not adopt the practice in this case of noticing immaterial mattei's.

The appellant, Daniel Dailey, obtained the allowance of an injunction by one of the district judges to restrain the collection of a judgment, which he says was obtained against one Jesse Duren> himself, and others, in the District Court of Cherokee county, at the September term for the year 1860.

Among other allegations made in the original petition, it is averred that Dailey was security for Duren upon a note of hand for some four hundred and fifty dollars ;• that at the rendition of the judgment Duren, the principal, was solvent, having lands and other property situated in the county of Cherokee, and that by the negligence of the appellee Wynn, the plaintiff in execution, in not proceeding to collect his judgment from Duren until after he became insolvent and died, he has been prejudiced and is entitled to equitable relief against the judgment.

It does not appear from the original petition that Dailey signed the note as security, or that he ever served upon Wynn any notice, either written or verbal, demanding that he should proceed against Duren; nor is there such equity shown by the original petition (which was not filed until some nine years after the rendition of judgment) as in the opinion of this court entitled Dailey to the allowance of an injunction.

Objection was made to the sufficiency of the verification of the original petition, which was somewhat uncertain and was unsupported by affidavits. We think the court might have required with great propriety additional proof of the allegations contained in the petition, or at least a more certain affidavit.-

A supplemental petition was, however, filed, which contained all the material allegations of the original, and was verified by a more certain affidavit.

Answers and exceptions were filed to the original and to the first supplemental petition. In the first supplemental petition damages are claimed for the wrongful suing out of execution, and the sale under it of certain lands of the appellant at great sacrifice, and in compensation for attorney’s fees, costs, etc.

A second supplemental petition was filed, by leave of the court and without terms, in which the appellant, in addition to his former allegations, avers that Pinkney Wynn, the plaintiff in execution, died about the year 1863, and was not in being at the time of the issuance of the execution which he seeks to enjoin.

To this supplemental petition he makes Bonner & Bonner parties defendant, and claims a large amount of damages from them for the wrongful suing out of execution against him, and the consequent sacrifice of his property at sheriff’s and constable’s sales.

On the eighteenth of August, A. D. 1869, and again on the tenth of March, A. D. 1870, motions were filed in the name of Pinkney Wynn to dissolve the injunction. Also, exceptions and answers were filed by Bonner & Bonner.

On the eleventh of February, and again on the twenty-fourth of February, A. D. 1870, Bonner & Bonner filed a protest against being made parties to the suit, together with exceptions and answers.

They deny all the equities claimed in the petition and supplemental petitions.

They neither admit nor deny in terms the death of Wynn, but aver.that if he were dead at the time of the suing out of the execution, they were ignorant of the fact, and were acting in good faith, having been formerly retained as his counsel. On the hearing of the cause, on the original and amended motions to dissolve, the court sustained the motions dissolving the injunction, upon which (the appellant refusing to ask for a continuance of the cause) a judgment for costs was entered against him, from which he appeals to this court.

We think that after it had been brought to the knowledge of the court, through the allegations of the second supplemental petition, that Wynn was dead prior to the issuing of execution in his name, the court erred in dissolving the injunction.

Whether this second supplemental petition should have been filed without terms was matter somewhat in the discretion of the district court, and we will not und ertake to review that discretion farther than to remark that we believe the better practice would be that where an entirely new cause of action is brought to the notice of the court, after large bills of costs have been incurred, it would be better that the party seeking to be heard on such new cause of action should he required first to pay the costs, previously incurred ; but it is too late to insist upon the enforcement of this rule-, when the party who would make it available has answered over to the merits.

We do not feel called upon s to decide whether the appellant’s demand for damages against Bonner & Bonner and M. H. Bonner, can be properly prosecuted in this proceeding, as it is not material to our reversal of the judgment of the district court, which judgment, for the reasons given, is reversed and the cause remanded.

Reversed and remanded.