Avery v. Stewart
| Decision Date | 12 October 1883 |
| Docket Number | Case No. 1430-4510. |
| Citation | 60 Tex. 154 |
| Parties | B. F. AVERY & SONS v. D. J. STEWART. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Parker. Tried below before the Hon. A. J. Hood.
Jasper N. Haney, for appellants.
No briefs on file for appellee.
The changes made by the adoption of the Revised Statutes in the different acts that were previously in force, on the subject of injunctions, was considered by the court in the case of the Tex. & N. O. R. R. Co. v. White, 57 Tex., 130.
It was there held, that, since the enactment of the Revised Statutes, the judgments or decrees that under the former laws could be rendered against the principal and sureties on the injunction bond, for the amount of the judgment enjoined, on a mere motion to dissolve the injunction, could not under the present law be entered where the injunction was dissolved on motion alone.
The reason assigned is that such judgments were not rendered by the district courts in the exercise of the general equity powers possessed by such courts sitting as courts of chancery, but solely by virtue of the statutory power conferred by the provisions of the one hundred and fifty-fifth section of the act of 13th May, 1846 (Hart. Dig., arts. 1602 and 1603; 1 Pasch. Dig., art. 3936).
That section being in part repealed by the Revised Statutes, the power that the district court formerly had, by virtue of the repealed portion of that act, to render such decree on dissolving the injunction, was taken away.
In the same case it was held that, under the statutory regulations now in force concerning injunctions (R. S., p. 415, title LI), the party seeking to enforce the payment of damages to the amount of the bond could bring an original action on the bond, or could in the pending suit attain the same object by pleading over in reconvention, and setting forth in appropriate terms the facts on which his claim for such judgment was based.
In that case (57 Tex., 130) there were no pleadings in reconvention asking for judgment against the parties to the injunction bond.
In the present case before us there were pleadings, under which the appellant sought in reconvention to recover the amount of the moneyed judgment enjoined and also ten per cent. damages against the appellee and his sureties on the injunction bond.
These matters were all submitted to the court without a jury on the final trial of the case.
Under the evidence the court dissolved the injunction at the costs of appellee,...
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Buggeln v. Cameron
...was subsequently, and after the adoption of the statute which Arizona borrowed, announced and approved in the cases of Avery & Sons v. Stewart, 60 Tex. 154, and & N.O.R.R. Co. v. White, 57 Tex. 130. Upon the general proposition that this court shall be bound by the decisions of the Texas co......
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Patterson v. English
...judgment have been properly rendered against the sureties for the principal sum enjoined. T. & N. O. Ry. v. White, 57 Tex. 129; Avery v. Stewart, 60 Tex. 154. For the errors indicated, the case is reversed and 1. Filed in the Court of Civil Appeals at Ft. Worth January 23, 1911, and transfe......
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Sanitary Appliance Co. v. French
...1 Tex. Civ. App. 408, 20 S. W. 1129; Dallas, etc., Bank v. Dallas, etc., Improvement District (Tex. Civ. App.) 2 S.W.(2d) 305; Avery v. Stewart, 60 Tex. 154; 32 C. J. 446, note (m), and authorities By the second assignment of error the appellants insist that there has been a misjoinder of c......
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Bailey v. Boydstun
...remedies against the bondsmen provided by law. Railway Co. v. White, 57 Tex. 129; Fernandez v. Casey, 77 Tex. 452, 14 S. W. 149; Avery v. Stewart, 60 Tex. 154. The judgment is reversed, and here rendered for plaintiffs in error, dissolving the injunction; that defendant in error take nothin......