Dearborn v. Phillips

| Tex. | Jul 1, 1858

Hemphill, Ch. J.

This was a suit by J. H. Dearborn to enjoin the sale of his only horse and rope, levied upon by Constable Philips, one of the defendants, under an execution issued by Mr. M. Payne, an acting Justice, another defendant ; also, that the execution be quashed, and that the plaintiff on final hearing may recover his damages, costs, &c.

There was a demurrer, and as a special exception it was pleaded that the plaintiff in the execution was not made a party to this suit. This defect was cured by William Murphy, the plaintiff in the' execution, appearing voluntarily, moving to quash the execution for defects apparent on its face, that the injunction be dismissed, and that he have judgment for costs, &c. On the 9th day of the Term, this motion by Murphy, to quash his execution, was sustained and judgment given against him for all costs in the case. On the 10th day he filed a general denial to the petition, and on the same day there is an entry that Murphy having appeared and excepted to petition for injunction, and moved the Court to quash the execution, ordered that execution be quashed-—petition for injunction be dissolved, and judgment be entered against plaintiff Dearborn for the costs. From which judgment plaintiff appealed..

The judgment dissolving the injunction on exception is erroneous, as the petition disclosed sufficient grounds for the writ, the truth of the grounds being admitted by the exception. The horse and rope were exempt from execution. (Cobbs v. Coleman, 14 Tex. R. 594.) The execution was void or defective, as admitted by the defendant Murphy, on whose motion it was quashed. The answer of Murphy was not sworn to, and was but a general denial, and not such an answer as to entitle the defendant to a dissolution of the injunction, (Burnley v. Cook, 14 Tex. R. 586.)

If this “ dissolution of the petition ” be intended as a final judgment, dismissing the suit, there was error, as the plaintiff having prayed for damages, and having stated a case for at least nominal relief, the case on the dissolution of injunction should have been continued over for hearing on the merits i and especially was there error in adjudging costs against the plaintiff. He had all the equities in the case. The execution against Mm was quashed, and if it had not been set aside, the levy on property exempt from execution should have been perpetually enjoined. He was clearly entitled to Ms costsj and these had, on" a previous day of the Court, been adjudged against the defendant Murphy.

The appellant might claim a trial on the question of damages, but from his brief it may be inferred that he will be satisfied with a reversal and reform of the judgment as to the costs. It is therefore ordered that the judgment for the costs against the plaintiff Dearborn be and the same is hereby reversed, and that judgment be entered against the defendants, Philips and Murphy for all the costs in this cause expended.

Reversed and reformed.