Another v. Ratliff

• Decision Date: 01 January 1853
• Citation: 10 Tex. 291
• Parties: FALL AND ANOTHER v. RATLIFF.
• Court: Texas Supreme Court

10 Tex. 291

FALL AND ANOTHER

v.RATLIFF.

Supreme Court of Texas.

1853.

Where an injunction which restrains the collection of money is dissolved, (on the ground that it was improperly obtained,) judgment for at least the amount enjoined and interest and costs should be rendered against the plaintiff and his sureties in the injunction bond.

The error of the District Court in refusing to give damages for delay on the dissolution of an injunction must be of the most palpable character to authorize a reversal in that particular. (Note 58.)

Appeal from San Augustine. The appellee filed his petition praying an injunction to restrain the appellants from enforcing the collection of two executions issued on judgments rendered against him by a justice of the peace, on grounds therein stated, the principal of which was that he had placed claims in their hands to be applied on collection to the extinguishment of the demands against himself, and that they had been collected, but had not been thus appropriated.

The appellants admitted their receipt of the said claims, but averred that they were to be applied to other demands against the appellee and not those upon which judgments were given, and that the appellee had received the credits to which by agreement he was entitled.

The jury found that the answers of the appellants were true; and thereupon it was ordered that the injunction be dissolved, the petition dismissed, and that the appellants should recover of the appellee and his security on the injunction bond all costs expended.

The appellants on a subsequent day moved for judgment against the appellee and his security on the said bond for the full amount of the two judgments enjoined, and interest and ten per cent. damages for the delay, on the grounds--

1st. That the injunction had been wholly dissolved.

2d. That it was obtained for delay. 3d. And that the jury had found all the facts in favor of appellants.

The motion was refused.

In the course of the proceedings the appellee excepted to the various rulings of the court, but as he did not prosecute an appeal they were not considered.

H. M. Kinsey, for appellants.

HEMPHILL, CH. J.

A difficulty presented in this cause is that the grounds upon which the court acted cannot be ascertained. They do not appear of record, and the counsel of appellants in his brief states that he is at a loss to conceive what they were.

The motion was filed one day after the dissolution of the injunction and the dismissal of the petition; but its refusal on the ground of its being too late is not probable, as, had it been substantial in law, the court would have acted upon it as on motion to reform a judgment, and not as made in a case out of court. The court may have been of opinion that the law does not in the dissolution of an injunction authorize a summary judgment for the amount enjoined on the bond given by the plaintiff on obtaining the injunction, and it is very probable that if this were a new question plausible reasons might be urged in support of such opinion. It is very clear that without the authority of law summary judgments cannot be entered upon bonds given in...