O'Neal v. Wills Point Bank

Citations

• 64 Tex. 644

Syllabus

<p>1. Appeal — Demurrer — Practice.— An injunction was sought to restrain the sale of a number of cattle under attachment and order of sale. The grounds were: (1) that a portion of the cattle were in the custody of the law; (2) that no valid levy was made on them, or a portion of them; (3) that a portion of them were exempt from forced sale. A general demurrer was sustained as to all the grounds except the first; plaintiffs declined to amend, and refused to proceed, and judgment was given on the injunction bond. Held:</p> <p>(1) That if the court below erred in not overruling the demurrer, the fact that the court sustained it in part was no excuse for the plaintiffs’ dismissing their suit; the court ruled that there was good cause for injunction . claimed as to part of the cattle.</p> <p>(2) The legal consequence of the failure to amend was not to put the suit out of court, but that result was brought about by the voluntary act of the plaintiffs, from which they had no right to appeal. The court could not have compelled them to proceed, and could only dismiss for want of prosecution.</p> <p>(3) The plaintiffs should have allowed the suit to proceed to final judgment, and, upon appeal from that judgment, the action of the court on the demurrer would have been subject to revision. The action of the plaintiffs was equivalent to a dismissal at their own request.</p> <p>2. Injunction — Demurrer.— An injunction may be wholly dissolved upon sustaining a general demurrer to the bill.</p> <p>3. Practice.— The fact that four terms of the court elapsed between the filing of demurrers and their being passed upon is no reason for striking out the demurrers, when there is nothing in the record to show that the case was ever called in regular order on the docket for trial until the date at which the demurrers were decided.</p> <p>4. Same.— If it had been so called and passed over, the presumption would be that this was done by agreement of the parties, and if such was not the case