Cashion v. Cashion, 2979
| Decision Date | 03 May 1951 |
| Docket Number | No. 2979,2979 |
| Citation | 239 S.W.2d 742 |
| Parties | CASHION et al. v. CASHION. |
| Court | Texas Court of Appeals |
T. Wesley Hook, Alvarado, for appellants.
H. Miller McPherson, Cleburne, for appellee.
Mrs. Eddie Cashion filed suit in the District Court of Johnson County to partition a farm consisting of 95 1/2 acres. The defendants in said suit were Chester Cashion and others. The court found that the land was incapable of being partitioned in kind, fixed the interests of the respective parties therein, appointed a receiver and ordered him to sell said property, divide the proceeds and report to the court. The appellants excepted and gave notice of appeal and deposited with the clerk the sum of $150.00 in lieu of an appeal bond, and filed the transcript in this court on April 2, 1951.
On April 12th the appellants filed in this court an application for an injunction seeking to restrain the receiver from selling said property and dividing the proceeds as ordered by the court. Appellants say in their petition that such sale and disposition of said proceeds should not be consummated until after this court has passed upon the case for the following reasons:
'(1) After the judgment of this court, the shares of the respective owners of said farm may be enlarged or diminished; and after such sale and division by the receiver, if appellants' shares were enlarged they would have only judgments and some of the judgment debtors are execution proof; or would be then execution proof.
'(2) Such sale and distribution now would deprive this court of power to render a judgment herein that would be effective.
'(3) No reason for such hurried sale has been alleged or shown.
'(4) The farm itself, remaining intact, is as effective to protect appellee as a supersedeas bond would be; and she is protected from loss of the use of revenue from the farm because she now has all the use of, and revenue from, the farm.
'(5) The uncertainty of the validity of such attempted sale now is likely to cause timidity in the bids and in the amount thereof; thereby lessening the amounts of money these appellants and other shareholders would receive.'
Appellants, in their oral argument before this court and in their brief on file herein, advance three propositions why the injunction should be issued, as follows:
'(1) While this case is pending here no other court has jurisdiction over the case or the subject matter thereof.
'(2) In this case, which is not for a money judgment with provision for issuance of execution as covered by Rule 357, but for partition of a farm of which the appellee has the entire use, no supersedeas bond is required by law.
'(3) If the receiver proceeds to sell the farm and divide the proceeds, as directed by the judgment appealed from,...
To continue reading
Request your trial
-
City of Lubbock v. Stubbs
...they should proceed under the rule 364, Sec. (e), Texas Rules of Civil Procedure, and not by way of injunction.' Cashion v. Cashion, Tex.Civ.App., 239 S.W.2d 742, 743 (1); Glenn v. Hollums, Tex.Civ.App., 73 S.W.2d 1068, Syl. 4; Camp v. Atlantic Refining Co., Tex.Civ.App., 179 S.W.2d 326, Sy......
-
South Falls Corp. v. Davenport
...petitioners have an adequate remedy by the filing of a supersedeas bond. Boothe v. Nelson, Tex.Civ.App., 321 S.W.2d 321; Cashion v. Cashion, Tex.Civ.App., 239 S.W.2d 742. In oral argument petitioners contended that under Rule 627 T.R.C.P. the judgment of discovery, being a final judgment, c......
-
Southwestern States General Corp. v. McKenzie, 05-83-00698-CV
...had acquired jurisdiction of the appeal did not diminish the trial court's continuing jurisdiction to fix a supersedeas bond. Cashion v. Cashion, 239 S.W.2d 742 (Tex.Civ.App.--Waco 1951, no writ). See also Hughes v. Thornton, 320 S.W.2d 191 (Tex.Civ.App.--Dallas 1958, no writ). Indeed, this......
-
Hughes v. Thornton, 15534
...may be afforded thereby. 3-A Tex.Jur. p. 427, Magnolia Petroleum Co. v. McClendon, 123 Tex. 10, 65 S.W.2d 484, and Cashion v. Cashion, Tex.Civ.App., 239 S.W.2d 742, 743; the latter case holding in part: 'The right to suspend a judgment by filing supersedeas bond in the trial court exists th......