Ferguson v. Herring
| Decision Date | 01 January 1878 |
| Citation | 49 Tex. 126 |
| Parties | JOHN H. FERGUSON v. M. D. HERRING AND WILLIAM GREEN, SHERIFF. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Waller. Tried below the Hon. L. Lindsay.
On the 18th day of April, A. D. 1871, Marcus D. Herring, administrator of R. M. Hargrove, recovered a judgment, in the District Court of Austin county, against Edwin Waller, Jr., for $2,500 and costs. On the 24th day of September, A D. 1873, a fieri facias issued to Waller county, against Edward Waller, Jr., the defendant in the judgment. The sheriff returned the writ, and it was filed in Waller county; not in Austin county, whence it issued.
The sheriff states, in his return, that he levied on, and had taken into his possession, one-half interest in seven bales of cotton in the seed, and a half interest in the growing crop of cotton, estimated at sixty-five acres of land, on the home place of Edwin Waller, Jr.,--all of said property valued at $575; and he advertised the same for sale on October 15, 1873. Sale was not made, because of the injunction restraining further proceedings against that property. It is not shown what the sheriff did with the cotton after the injunction. The injunction was obtained by the appellant, John H. Ferguson, on the ground that he had made a payment to Edwin Waller, Jr., of $1,000 in gold, in money and supplies, without which the crop could not have been made; and on September 20, 1873, Waller executed a bill of sale of the property to Ferguson. There are other grounds stated, not material to mention.
The defendants in the injunction suit filed a general demurrer and general denial, not sworn to; and moved to dissolve the injunction; and prayer for judgment for value of the property, and ten per cent. damages. The plaintiff moved for a continuance, and this motion was overruled. The court dissolved the injunction, and rendered judgment in favor of defendant Herring for $575 principal, and ten per cent. damages, without a hearing, and refused to permit the plaintiff to introduce any evidence, or to have a verdict of a jury on the facts. The bill of exceptions, motion for new trial which was overruled, and assignment of errors show that this was objected to in the court below.
Harris & Masterson, for appellant.
Reese & Cole, for appellee.--In this case, the injunction was rightly dissolved, for want of equity in the petition. The plaintiff's petition discloses nothing that would entitle him to the extraordinary remedy of injunction. The law is clearly established, that to entitle a party to the extraordinary remedy of injunction, or any other remedy of equity, as distinguished from law, he must show that the ordinary remedy which is unquestionably afforded by the law, as distinguished from equity, would not afford him adequate and complete relief.
Now, if the sheriff had levied upon appellant's property to satisfy the debt of another, the statutes for the trial of the right of property afforded him ample, complete, and a peculiarly appropriate remedy, admirable in its simplicity and freedom from technicality; and so appellant had no right to the remedy prayed for. The petition alleges that the property levied upon had been sold and not mortgaged by Waller to appellant; but if, as is alleged in plaintiff's petition, the sheriff had made no levy, then in what were appellant's rights invaded?--and what wrong done or threatened, irreparable by ordinary remedy at law, has he to complain of?
The petition alleges that the levy was null and void, that the sheriff did not take possession of the property, but left it in the possession of the defendant in execution. If there was no levy, and the possession was not changed or interfered with, as the petition states, then the plaintiff has no right of action, legal or equitable, but could have kept possession of the property until that possession was interfered with by a levy, and then filed a claimant's bond and affidavit under the statute.
The appellant, it would seem, seeks to avoid the real issue by technical objections to the levy, and asks a court of equity to help him in it. If the sheriff's acts in regard to the property amounted to a trespass, then there was a legal levy; if not, the plaintiff has no wrong to complain of. A sale under a void levy, by the sheriff, would not have even embarrassed the plaintiff; besides, the sheriff could not have sold, without taking the...
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... ... significant when it is considered that it was first incorporated into our law in the Revised Statutes of 1879, soon after the decision of Ferguson v. Herring, supra [49 Tex. 126] in 1878." ... At the time (1897) this opinion was written by Judge Denman, the article of the ... ...
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Slayden-Kirksey Woolen Mill v. Robinson
...under the statutes, the levy was unlawful, said: "But notwithstanding this fact, it is contended that under the authority of Ferguson v. Herring, 49 Tex. 129, the trustee had an adequate remedy under the statute providing a proceeding for the trial of the right of property, and that therefo......
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Berwald's, Inc. v. Brown
...statutes changed the rule that injunctions will not issue so long as there is available an adequate legal remedy. In the case of Ferguson v. Herring, 49 Tex. 126, our Supreme Court, in sustaining the action of the trial court, in dissolving an injunction, held that "there was no error, for ......