Faires v. McLellan

• Decision Date: 14 December 1893
• Citation: Faires v. McLellan, 24 S.W. 365 (Tex. App. 1893)
• Parties: FAIRES et al. v. McLELLAN.
• Court: Texas Court of Appeals

24 S.W. 365

FAIRES et al. v. McLELLAN.

Court of Civil Appeals of Texas.

December 14, 1893.

Appeal from district court, Fayette county; H. Teichmueller, Judge.

Suit by F. A. McLellan against R. O. Faires and others for an injunction. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

W. S. Robson and Phelps & Willrich, for appellants. J. Lane and A. L. Jackson, for appellee.

PLEASANTS, J.

The statement and result of this suit is substantially given in appellee's brief: "On August 22, 1891, appellee filed his petition in this cause. He prayed for judgment restraining appellants from the execution of a certain order of sale issued out of the district court of Fayette county, Texas, on the 25th day of July, 1891, in cause No. 3,738, style W. A. Faires, Jr., vs. S. A. McLellan, issued for the sum of $2,258.65, interest and costs, alleging that the judgment rendered in said cause No. 3,738 had long prior to the filing of his petition been fully paid off and discharged; praying that appellants R. O. and W. A. Faires be forever enjoined from attempting to collect anything further upon said judgment. Appellee further alleged that by the direction of the appellants R. O. and W. A. Faires appellant B. L. Zapp was caused to levy said order of sale upon lots 7, 8, and 9, in block No. 36, in the town of Flatonion, Fayette county, Texas, appellee's homestead, and on the 6th day of August, 1891, advertised the same for sale, to be sold on the first Tuesday in September, 1891, to satisfy said execution. That the issuance and levy of said order of sale, and the advertisement of said property for sale, was by appellants wrongfully, knowingly, and maliciously done to injure, oppress, and harass appellee. He prayed for actual and exemplary damages on account thereof against appellants R. O. and W. A. Faires. Appellee also prayed for judgment against appellant W. A. Faires for the amount that the court might find he had overpaid him on said judgment in said cause No. 3,738. Appellee also prayed for temporary writ of injunction to restrain and stop the sale of his said property, which was granted by the court on August 22, 1891, and appellee filed his injunction bond on the same date. On December 12th, R. O. Faires filed his original answer, consisting of general demurrer, three special exceptions, plea of res adjudicata; and he also denied that appellee had fully paid off the judgment rendered in said cause No. 3,738, claiming a balance due of $126.40 on same. On December 12, 1892, W. A. Faires and B. L. Zapp filed their original answer, which consisted of a general denial, and the adoption as their own of the answer of their codefendant R. O. Faires. Appellants' special exceptions complained of appellee's allegations seeking to recover $5,000 actual damages to himself and $5,000 actual damages to his wife, for mental and physical pain and suffering, etc., caused to them by the alleged illegal and wrongful acts of appellants, and to the item of $100 attorney's fees, and $10,000 exemplary damages claimed by plaintiff. On December 12, 1892, appellee obtained leave of the court to file his 1st supplemental petition, and on said date he filed the same, which consisted of special exception to appellants' plea of res adjudicata, and five other special exceptions to irrelevant matter in appellants' answer, and denying many of the allegations of appellants' said answer. On December 13, 1892, the cause came on for trial. The charge and rulings of the court eliminated all issues joined by the pleadings except the single one as to whether or not the judgment in said cause No. 3,738, on which the said order of sale had been issued, had been paid prior to the 25th day of July, 1891." Verdict and judgment was rendered for appellee. The judgment perpetuated the injunction restraining defendants from attempting to enforce the order of sale issued upon the judgment in favor of appellant W. A. Faires against appellee in cause No. 3,738, and it enjoined the said appellants R. O. and W. A. Faires from ever attempting to collect any money on said judgment. The defendants Faires moved for a new trial, which being overruled, they appealed to this court, and assign several errors, but in their briefs rely upon only two of their assignments, which are as follows: First assignment: "The court erred in failing and refusing to submit to the jury defendant's plea of res adjudicata, and the evidence in...