Friedlander v. Ehrenworth

58 Tex. 350 | Tex. | 1883

Watts, J. Com. App.

It does not follow as a matter of course, that where the answer denies all the material allegations of the petition, that a preliminary injunction will be dissolved. The true doctrine is so clearly and forcibly stated by Mr. High in his most excellent work on Injunctions, vol. 2, sec. 1508, that an extract therefrom is deemed appropriate. He says: “To the general rule that a preliminary injunction will be dissolved on the coming in of the answer fully denying the equities of the bill, there are numerous exceptions, based upon recognized principles of equity, which may not inappropriately be noticed in this connection; and in the first place it is to be constantly borne in mind that the dissolution, like the granting of interlocutory injunctions, is largely a matter of judicial discretion, to be determined by the nature of the particular case under consideration. A dissolution, therefore, does not follow necessarily and of course upon the coming in of the answer denying the material allegations of the bill upon Avhich the injunction issued, and the court may, in the exercise of a sound judicial discretion, refuse a dissolution and continue the injunction to the hearing, Avhen the circumstances of the case seem to demand this course. Especially avill this discretion be exercised where fraud is the gravamen of the bill, or Avhen it is apparent to the court that a dissolution of the injunction would result in greater injury and hardship than its continuance to the hearing, or Avhen it is apparent that by the dissolution complainant Avould lose all the benefits which Avould otherwise accrue to him should he finally succeed in the cause. And a court of last resort Avill be loth to disturb the action of the court beloAV in thus denying a motion to dissolve, unless an abuse of its discretion is shown.”

These observations are fully sustained by numerous adjudicated cases cited in notes to that section.

It will be observed that in this case fraud is the gravamen of the complaint. In fact appellee’s supposed cause of action is made to hinge upon the alleged frauds of appellant and the administratrix of the estate of Carl Morris, deceased. Besides, if appellee had finally succeeded in the cause upon his allegations of fraud and the insolvency of appellant, then it is apparent from the record that, by a dissolution of the Avrit, appellee Avould have been in danger of losing all the benefits that Avould have other Avise accrued to him.

There is nothing in the record that manifests such an abuse of discretion upon the part of the court below, in refusing to dissolve the injunction, as would require this court to revise that ruling and reverse the judgment on that account.

Upon the trial the appellant asked the court to instruct the jury as follows: “ The jury are further instructed that, in assessing the value of the goods, they are not confined to the value placed thereon by the sheriff in his return upon the Avrit of injunction, but may judge of their value from all the evidence before them.”

This was refused by the court, the point saved by bill, and assigned as error.

. The rule is Avell settled that the valuation of the goods, as fixed by the officer in his return upon the writ of injunction, is not conclusive as against appellant. Abbott’s Trial Evidence, p. 200, and authorities cited.

[Opinion approved January 19, 1883.]

Appellant, in his answer, contested the valuation as fixed by the sheriff in his return, and adduced evidence upon the trial tending to establish that the actual value of the goods seized was greater than was assessed by the officer in the return. In estimating the value of the goods, the jury should have considered all the evidence before them upon that issue, guided by appropriate instructions explanatory of the rules of law applicable thereto. The charge asked by appellant and refused by the court correctly stated the rule of law which was peculiarly applicable to the case as made by the evidence. The court had told the jury that in the event they found that appellant had purchased the goods in good faith and for value, then to find for him the value of the same, but upon what basis' they were to estimate that value the court was silent. Under the circumstances of the case, the charge asked should have been given.

It appears from the evidence that the goods were sold for not more than their actual value by the receiver; upon that point there is no conflict in the evidence. From the proceeds arising from that sale, the receiver deducted something over $100, as expenses in managing the goods and making the sale; the balance he deposited subject to the order of the court. The jury by their verdict affirmed the good faith of appellant’s purchase, and from that finding it follows that the seizure under the process was wrongful, and that the appellant would be entitled to the proceeds of the sale deposited by the receiver, and also to a verdict for the difference between the actual value of the goods and the amount so deposited by the receiver. As has been seen, that difference amounts to something over $100, as appears from the evidence in the record. However, the jury only allowed appellant one dollar as actual damages. This finding was against the evidence, and the court below ought to have granted appellant’s motion for a new trial.

We conclude, and so report, that on account of the errors indicated the judgment ought to be reversed and the cause remanded.

Reversed and remanded.