Hillebrant v. Barton

39 Tex. 599 | Tex. | 1873

Ogden, P. J.

The petition for an injunction in this ease may have been defective technically in not praying for a restraining order as well against the defendant and others as against the officer holding the writ of restitution, but as neither the defendant nor any other person could take forcible and legal possession except through the aid of the officer, under and by virtue of that writ, we think a reasonable construction of the prayer would be that the petitioner should hot be disturbed in her possession by reason of that writ from the justice’s.court. And as the writ of injunction restrains the officer from executing said writ, it thereby restrains him from interfering with the petitioner’s possession by reason of that writ, and we think it immaterial whether the officer had dispossessed her before the issuance of the injunction or not; if she had regained possession of the premises the writ of injunction protected her in that possession, and for that protection we think she and her sureties are responsible on their bond. But we think the judgment for damages is excessive, being for considerably more than prayed for in the petition in reconvention.

It is a familiar principle that courts will not grant to-litigants any greater rights or more relief than is asked' for in their pleadings. (Pinchain v. Collard, 13 Texas, 335; Moore v. Guest, 8 Texas, 119.) The prayer in the-plea in reconvention is for a judgment for the rent of the-premises, at the rate of ten dollars gold per month, by way of damages, from the service of the injunction to the date of filing the answer, which was on the second day of April, 1871. There is no prayer for further damages, nor for general or special relief, and yet a judgment for a much larger sum than the rent for the time at the rate-specified was rendered, and we are of the opinion that', the court was not authorized under the pleadings to grant any further relief than prayed for.

There was no error in the court in granting a writ of procedendo, upon the motion of the party interested, in. a case where an appeal had been attempted from a justice’s court, and when the appeal had not been perfected, or when an appeal had been dismissed. But, for the-error indicated, the judgment is reversed and the cause-remanded.

Reversed and remanded.