Fulgham v. Chevallier
| Decision Date | 01 January 1853 |
| Parties | FULGHAM v. CHEVALLIER. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
Where A, having a claim against B for less than $100, sues in a Justice's Court and obtains judgment, and at the same time B has a claim against A for more than $100, B can sue A on his claim in the District Court and obtain an injunction to restrain the collection of A's judgment in the meantime without an averment that A is insolvent (Note 93.)
Where the petition for an injunction contains a good cause of action, although the answer may traverse all the material facts alleged, it is error to dismiss the petition, but it is proper in such a case to dissolve the temporary injunction.
Appeal from Nacogdoches. The appellant filed his petition setting out various claims and demands against the defendant, and that the defendant had sued him upon three several notes before a justice of the peace, and had obtained judgment against him thereupon; that on account of the jurisdiction of the justice's court petitioner was not allowed to plead in reconvention the matters set forth in his petition. He prayed that defendant be compelled to account, and he prayed an injunction staying execution on the judgments rendered by the justice of the peace. The injunction was awarded. The defendant appeared and excepted to the sufficiency of the plaintiff's petition, and prayed that it be dismissed, and he at the same time answered the petition on oath. The court sustained the exception and dissolved the injunction, and dismissed the case. The plaintiff appealed.T. J. Jennings, for appellant.
J. M. Ardrey, for appellee.
If the facts contained in the petition are true, and they must be regarded as true in deciding on the exception, the plaintiff clearly showed a good cause of action, and it was error to dismiss the suit on the exception. The answer was full in denying the equities of the petition, and on this ground the defendant would have been entitled to a dissolution of the injunction but not to a dismissal of the petition. That should have remained to be tried upon the issues of fact formed by the petition and answer as in other cases. Had the plaintiff rested his case on evidence to be procured by the answer of the defendant, the answer being full and furnishing no evidence in support of the plaintiff's action, it might then have been right and proper to dismiss the suit. But the plaintiff did not so rest his cause of action. The judgment of the court below is therefore...
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Love v. Powell
...therefore, to cite the cases on either side of the question without additional comment. In Pullen v. Baker, 41 Tex. 419; Fulgham v. Chevallier, 10 Tex. 518; Burnley v. Cook, 13 Tex. 586; Dearborn v. Phillips, 21 Tex. 451; and Texas Land Co. v. Turman, 53 Tex. 619,—it was held error to dismi......
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Meyers v. Walker
...that it is error to dismiss, though the plaintiff made no request for the trial on the merits. Pullen v. Baker, 41 Tex. 419; Fulgham v. Chevallier, 10 Tex. 518; Burnley v. Cook, 13 Tex. 586, 65 Am. Dec. 79; Dearborn v. Phillips, 21 Tex. 449; Texas Land Co. v. Turman, 53 Tex. Appellees, as w......
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Sims v. Redding
...The court erred most flagrantly in dismissing the petition, even if the injunction was dissolved. Hart. Dig. art. 1604; Fulgham v. Chevallier, 10 Tex. 518;Burnley v. Cook, 13 Tex. 586.O'Conner, for appellee.ROBERTS, J. In this case appellant filed a petition for an injunction to enjoin a ju......
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Gibson v. Moore
...cases have decided the question so frequently, as almost to leave the court below without a shadow of apology for its error. Fulgham v. Chevallier, 10 Tex. 518;Burnley v. Cook, 13 Id. 586; Dearborn v. Phillips, Tyler term, 1858. On these two errors, it is plain that the party has been depri......