Dailey v. Wynn

Citations

• 33 Tex. 614

Syllabus

<p>1. A defendant in a judgment obtained a preliminary injunction of execution on the ground that he was only a surety for a co-defendant, who, at the time the judgment was rendered, had ample property subject to execution, and that the plaintiff by negligence had suffered such principal defendant to become insolvent, etc. These equitiies being denied under oath by the attorney of the plaintiff in the execution, the petitioner for injunction amended, alleging that be had just learned that the plaintiff in execution was dead at the time the execution was issued in his name. This allegation was neither denied nor expressly admitted hy the other side, on whose motion, however, 1 he court below dissolved the injunction, and also, on refusal of the petitioner to take further steps, dismissed the cause at his cisti. fíéVf, in view of the uncen troverted allegation that the plaintiff in the exeeution was dead at the time it was issued, that it was error to dissolve the injunction. ,</p> <p>2. The imposition of terms upon the allowance of amendments rests somewhat in the discretion of the district courts. But when, after large bills of costs have been incurred in a ease,an entirely new cause of action is brought to the attention of a district court, before it should be heard the party presenting it should be required to pay the. costs previously accrued. But after the other party has answered to the merits of such new cause of action, it is too late for him ta object that such terms were not imposed.</p>