21 Tex. 449 | Tex. | 1858
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
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
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.