Love v. Powell

Citations

• 67 Tex. 15
• 2 S.W. 456
• 1886 Tex. LEXIS 606

Syllabus

<p>1. Injunction—Equity—Fact Case.—A petition for injunction alleged that defendant paid off a judgment against plaintiff, agreeing to take in payment of the money so advanced a certain tract of land; that in pursuance of this agreement defendant was put in possession, and was still in possession, of the land, but, claiming to be the owner of the judgment, had sued out execution, levied it upon plaintiff’s lands, and would cause the same to be sold if not enjoined. He Id, the petition showed good grounds fór a writ of injunction.</p> <p>% Temporary Injunction—Dissolution—Effect—Practice.—In a suit by injunction, when the temporary injunction has been dissolved on the filing of an answer swearing away the equities of the bill, the plaintiff is entitled to a trial upon the merits unless the right is expressly waived, and it is error to dismiss though the plaintiff make no request for a trial on the merits. (Pullen v. Baker, 41 Texas, 419; Fulgham v. Chevallier, 10 Texas, 549; Burnley v. Cook, 13 Texas, 586; Dearborn v. Phillips, 21 Texas, 449; Texas Land Co. v. Turman, 53 Texas, 623.)</p> <p>'3. Same—Cases Overruled.—Gaskins v. Peebles, 44 Texas, 390; Sims v. Redding, 20 Texas, 386; Lively v. Bristow, 12 Texas, 60; Clegg v. Darragh, 63 Texas, 357; Baldridge v. Cook, 27 Texas, 565, overruled, and the distinction laid down in Texas Land Company v. Turman not recognized.</p>