Ferguson v. Herring

Citations

• 49 Tex. 126

Syllabus

<p>1. Injunction.—The claimant of property levied on under execution cannot invoice relief by injunction to prevent its sale, unless some good reason be alleged in the petition why he did not resort to his legal remedy by affidavit and claim bond to try the right of property.</p> <p>2. Injunction—Judgment.—On the dissolution of an injunction issued to restrain a sale of property by the sheriff, it is error to render judgment against the plaintiff and his sureties, on motion, for the value of the property as estimated by the sheriff in his return, and ten per cent, damages, with costs of suit.</p> <p>3. Practice—Injunction.—On the dissolution of an injunction to restrain a sale of property by a sheriff, it is error to enter judgment, on motion, finally determining the suit, when a trial is demanded by the plaintiff. It would be otherwise, if the motion to dissolve is presented when the case is called for trial, and is predicated on the want of equity in the bill.</p> <p>4. Damages—Injunction.—When an injunction is dissolved which issued to restrain the sale of property by the sheriff levied on under execution, it is error to render judgment for ten per cent, damages against the plaintiff, if he was no party to the execution or former judgment. It is also error, in such case, to render judgment against the principal and sureties on the injunction bond for the value of the property levied on. The only way in which a defendant could recover damages in such proceeding, would be on a claim set up in reconvention.</p> <p>5. Approved.—Carlin v. Hudson, 12 Tex., 202, approved.</p>