Ferguson v. Herring

49 Tex. 126 | Tex. | 1878

Roberts, Chief Justice.

This is a suit brought by appellant against appellees to enjoin the sale under execution of some cotton, partly picked out and in pens, and partly unpicked in the field, levied on by Sheriff Green as the property of Edwin Waller, Jr., to satisfy a judgment in favor of M. D. Herring, administrator, and claimed by Ferguson as his property, by virtue of a transfer in writing from Edwin Waller, Jr., to him.

Defendants below filed an answer containing a general exception and general denial, and a motion to dissolve the injunction for want of equity.

The court sustained the motion to dissolve the injunction, and in that there was no error, for the petition exhibited no good reason why the plaintiff did not resold to his legal remedy by affidavit and claim bond to try the right to the property levied on; or if the property was not in fact levied on by the sheriff, as it is alleged in the petition, he did not need, and was not entitled to, any remedy, either legal or equitable.

But the court, upon dissolving the injunction upon motion, proceeded at once to render a judgment against the plaintiff, Ferguson, and the sureties on his injunction bond, for the value of the- cotton as estimated by the sheriff in his return upon the execution, ($575,) and ten per cent, damages on that amount, together with the costs of the suit.

This action of the court was erroneous in several respects.

The suit should not have been finally determined on a motion to dissolve the injunction, when the plaintiff asked the court for a trial, as shown by the bill of exceptions in the record. Had the motion to dissolve been presented when the case was called for trial, in connection with the general exception to the petition, it would have been proper to have dissolved the injunction and dismissed the petition for want of equity, but not alone upon the motion to dissolve. Again, the court had no authority to assess the ten per cent, damages upon the value of the property levied on, because Ferguson was no party to the execution, or to the judgment on which it was issued; and there was no authority for rendering the judgment for -the value of the property levied on against the principal and sureties on the injunction bond. The bond itself only bound the sureties to pay such damages as said Herring might sustain by the wrongful suing out of the writ.

The only way in which Herring could have recovered anything in this suit, would have been by claiming damages in reconvention for the wrongful suing out of the injunction by Ferguson.

As authority for the petition being subject to exception for want of equity, and for the judgment for the value of the property and ten per cent, damages being erroneous, reference may be had to an opinion of Justice Wheeler, in the case of Carlin v. Hudson, 12 Tex., 202, in which it is held, that article 3935 of Paschal’s Digest, authorizing the assessment of damages upon the dissolution of an injunction upon motion, “ has reference to injunctions to restrain the collection of money, obtained by thé judgment debtor, or some one who is a party to the judgment ”; and the same may be said of article 3936 of Paschal’s Digest, under which judgment may be rendered for the principal sum enjoined. (Pryor v. Emerson, 22 Tex., 165.) In the same opinion, it is held, that the remedy against one obtaining an injunction who is no party to the judgment, is by reconvention in the same suit, or by separate suit on the bond.

There is no other question in the case requiring notice in this opinion.

For the error in rendering judgment for the estimated value of the property levied on, and ten per cent, damages thereon, by the court, the judgment is reversed and the cause remanded.

Reversed and remanded.