Collins v. Citizens' State Bank

• Decision Date: 11 April 1922
• Docket Number: (No. 8276.)
• Citation: 241 S.W. 633
• Parties: COLLINS, Sheriff, et al. v. CITIZENS' STATE BANK OF HOUSTON.
• Court: Texas Court of Appeals

241 S.W. 633

COLLINS, Sheriff, et al. v. CITIZENS' STATE BANK OF HOUSTON.

(No. 8276.)

Court of Civil Appeals of Texas. Galveston.

April 11, 1922.

Appeal from District Court, Ft. Bend County; M. S. Munson, Judge.

Action by the Citizens' State Bank of Houston, against H. W. Collins, Sheriff of Ft. Bend County, Tex., and others. From an order granting a temporary injunction, defendants appeal. Reversed and remanded.

Bonner & Bonner, of Wichita Falls, for appellants.

Woods, King & John, of Houston, for appellee.

GRAVES, J.

This appeal is from an order of the district court of Ft. Bend county temporarily enjoining the sale under execution of certain land in that county, levied upon as the property of Dan Dillon on December 13, 1921. The execution issued out of the Seventy-Eighth district court for Wichita county, Tex., on a judgment for money rendered by that court against Dillon and another in favor of the American National Bank of Wichita Falls, an abstract of which had some months before the levy under the execution—that is, on May 13, 1921—been filed and recorded in the office of the county clerk of Ft. Bend county.

The Citizens' State Bank of Houston procured the issuance of the temporary injunction against the Wichita Falls Bank, the sheriff of Ft. Bend county, and one Voelkel, upon allegations in a petition for that relief sworn to by its president, averring in substance: (1) That it, and not Dillon, was the owner of the property, pursuant to a deed from him and his wife conveying it to the bank, dated September 26, 1921, and duly filed for record in the office of the county clerk of Ft. Bend county on September 26, 1921; (2) that prior to the execution of such deed to the bank the property "was owned and held by Mrs. Dettie Mae Dillon, wife of Dan Dillon, as her separate property and not by Dan Dillon"; (3) that the alias execution under and by virtue of which the levy upon and advertisement of the property for sale was made, as shown by the face of the notice of sale, was and had long prior thereto been out of date, and consequently was dormant, void, and of no effect, in that such notice showed that the execution had been issued out of the district court of Wichita county on the 6th day of April, 1921, whereas the levy thereunder had been made more than eight months thereafter—that is, on the 13th day of December, 1921; (4) that, unless restrained, the sheriff of the county would sell the land under such dormant and void execution, and thereby cast a cloud upon the applicant's title thereto.

The order granting the writ is as follows:

"The above and foregoing petition having been presented to me in chambers on this the 6th day of February, 1922, and the same having been by me read, considered, and understood, it is ordered that a temporary writ of injunction issue in terms as prayed for, upon the plaintiff executing a good and solvent bond in the sum of $2,500, payable to said defendants, and conditioned as required by law, to be approved by the clerk of the district court of Ft. Bend county, Tex."

The record before us shows that on February 7, 1922, one day after the date appearing in the order just quoted, the Wichita Falls Bank filed its answer to this petition, denying under oath all of its material averments for injunction, and further pleading as facts matters tending to show that, as against Dan Dillon, it on May 13, 1921, fixed a judgment lien against the land so seized—that is, some 4½ months prior to the stipulated date of the deed from Dillon and wife to the Houston Bank; coincident with the coming in of this answer, the Houston Bank filed a supplemental petition in reply, in turn denying under oath a number of the answering averments of the other bank, particularly that it had taken the necessary procedure therefor, or had in fact acquired any lien on or interest in the land prior to the deed from Dillon and wife of September 26, 1921.

In this court the Wichita Falls Bank, L. C. Voelkel, and the sheriff of Ft. Bend county, as appellants, ground their complaint against the court's action in granting the writ upon two contentions: (1) The appellee's petition upon which the order rested was insufficient in law, in that it did not comply with the rule of pleading in such cases to the effect that the statements of the appellant for injunction are to be taken most strictly against himself, and must negative every reasonable inference arising out of the facts stated from which it might be concluded that, under other...