Foster v. Shephard

Citations

• 33 Tex. 687

Syllabus

<p>1. The defendant, as surviving partner of a mercantile firm, had recovered a judgment against F, The plaintiffs, being universal legatees of the deceased partner, sued in the district court, alleging that the defendant had long since discharged the debts of the firm, and had converted its assets to his own use; that if permitted to collect the judgment against F,, he would convert that also to his own use and thus defraud the plaintiffs;—wherefore, they prayed that he be enjoined from collecting the judgment, and be required to account for the assets, etc. A preliminary injunction was granted, but subsequently, on motion of the defendant, it was dissolved for want of equity in the petition, and judgment was rendered against the plaintiffs and the sureties on their injunction bond for the amount of the judgment against F., with interest and costs—the suit being retained for trial in other respects. Held, that the case comes within the provisions of Article 3937, Paschal’s Digest, and it was error to dissolve the injunction without requiring of the defondant a refunding bond, as prescribed in that enactment.</p> <p>S. Held, further, that inasmuch as the plaintiffs were strangers to the judgment against F., the case does not come within the provisions of Article 3935, Paschal’s Digest, and it was error to render judgment on their injunction bond for the amount of the judgment against F. (Carlin v. Hudson, 12 Texas, 202, cited and approved.) If the injunction was wrongfully sued out to' the damage of the defendant, he could have reconvened for his damages in the same suit, or recover them by an action on the injunction bond.</p>