Pacheco v. Allala

261 S.W. 148 | Tex. App. | 1924

It appears from the record that the lands of appellees are about to be sold under execution to satisfy a debt owing by another to a third party, as evidenced by a judgment to which appellees, the owners of the land, are strangers. At the instance of the owners of the land the court below granted a temporary injunction restraining the sale. The execution was based upon a judgment for $7,632, with interest. The injunction bond required and given was in the sum of only $500.

Appellants, the judgment creditors, first contend that the injunction is to restrain the "execution of a money judgment or the collection of a debt," as contemplated in article 4650, R.S., in which it is further provided that in such case the injunction bond shall be "fixed in double the amount of such Judgment or debt," and appellants insist that the bond for a less amount is insufficient to support the injunction, which is therefore void. We overrule the contention, for it is held that the purpose and effect of an injunction to restrain a sale of real estate under execution is not to restrain the execution of a moneyed judgment or the collection of a debt, and that in such case the court may fix bond in such amount as seems appropriate under the facts of the case. Article 4650; Manes v. Bletsch (Tex.Civ.App.) 239 S.W. 307; Hicks v. Murphy (Tex.Civ.App.) 151 S.W. 845; Bank v. Barbee (Tex.Civ.App.) 255 S.W. 1023. We think, too, if the statute were otherwise applicable, it would not apply here, because the judgment on which the execution is based is not against the owner of the land seeking the injunction, nor is the debt sought to be satisfied against him, but another.

It is nest contended that appellees were not entitled to an injunction, because they had an adequate remedy at law. It is true that in early cases it was held, upon this ground, that an injunction will not be issued to restrain the sale upon execution of real estate which was not owned by the judgment debtor, but by a third person, who makes the application. Carlin v. Hudson, 12 Tex. 202, 62 Am.Dec. 521; Griffin v. Chadwick, 44 Tex. 409; Whitman v. Willis, 51 Tex. 421. But it is now expressly provided by statute that courts may grant writs of injunction "where a cloud would be put on the title of real estate being sold under an execution against a person, * * * having no interest in such real estate subject to the execution at the time of the sale," which is the precise case presented here. Article 4643, R.S.; Winkie v. Conatser (Tex.Civ.App.) 171 S.W. 1017; Allen v. Carpenter (Tex.Civ.App.)182 S.W. 430.

It is also contended by appellants that service of the restraining order is void, first, because the order was served before it was issued, and, second, because it was served on the sheriff, one of the defendants, by that officer's deputy. If these circumstances constituted irregularities, the consequences are immaterial. They do not affect the validity of the injunction, of the issuance of which the defendants seem to have been apprised in some efficient way. It is sufficient that they received notice, and are observing the order.

The judgment is affirmed.