G. Seligson & Co. v. Collins

• Decision Date: 02 June 1885
• Docket Number: Case No. 5513.
• Citation: 64 Tex. 314
• Court: Texas Supreme Court
• Parties: G. SELIGSON & CO. v. C. F. COLLINS.

64 Tex. 314

G. SELIGSON & CO.

v.C. F. COLLINS.

Case No. 5513.

Supreme Court of Texas.

Jun. 2, 1885.

APPEAL from Coryell. Tried below before the Hon. T. L. Nugent.

Collins brought this suit against appellants and J. M. Lanham, sheriff of Coryell county, to enjoin a sale of the lands described in the petition, by virtue of an order of sale issued out of the county court of Galveston county. Seligson & Co. had sued Collins in the county court of Galveston county, and procured the issuance of an attachment which had been levied upon the land; a judgment by default was rendered for the debt and the attachment lien foreclosed, and it was by virtue of that judgment the order of sale had been issued.

As a ground for injunction Collins claimed to be a married man and the head of a family, and as such was occupying the land as a homestead at and before the levy of the attachment.

Appellants moved to dismiss the suit on the ground that the district court of Coryell county had no jurisdiction. They also pleaded to the jurisdiction of the court upon the same ground, viz.: that the writ of injunction was returnable to the court from which the order of sale issued. And answered by general denial, and that the homestead issue was res adjudicata by reason of the judgment foreclosing the lien.

The motion, pleas and exceptions were overruled, and the court having heard the evidence rendered judgment for Collins, perpetually enjoining the sale.

The points presented were these: 1st. The court erred in holding that the decree foreclosing the lien did not conclude Collins as to his homestead right. 2d. The court erred in overruling the motion, plea and exceptions as to the jurisdiction of the court.

Thos. C. Smith, for appellants, on the question of jurisdiction, cited: R. S., art. 2280; Hugo v. Dignowitty, Willson & White's Reports, sec. 158; George v. Dyer, Id., sec. 780; Hendrick v. Cannon, 2 Tex., 259;Winnie v. Grayson, 3 Tex., 429;Cook v. Baldridge, 39 Tex., 250; Wheeler & Wilson Manuf'g Co. v. Collins, 4 Law Journal, p. 381; Pas. Dig., art. 3932.

On res adjudicata, he cited: Nichols v. Dibrell, 61 Tex., 539-543, top; Tadlock v. Eccles, 20 Tex., 791, 792;Lee v. Kingsbury, 13 Tex., 68;Chilson v. Reeves, 29 Tex., 276-281;Hatch v. Garza, 22 Tex., 176;Foster v. Wells, 4 Tex., 101-104;Weathered v. Mays, 4 Tex., 387, 388; 1 Greenl. on Ev., sec. 534.

Vardiman & Atkinson, for appellee, cited: Cross v. Peterson, Civil Decis. of Ct. of App., 600; Brown v. Young, Id., 713.

WATTS, J. COM. APP.

Appellee was not concluded as to his homestead rights by the decree of the county court of Galveston county foreclosing the attachment lien upon the land. No such issue was made or adjudicated in that case. Willis v. Matthews, 46 Tex., 483.

Here the injunction restrained a sale of the particular property described in the order of sale. This order of sale commanded the sheriff of Coryell county to sell the specific property; hence the effect of the injunction was to suspend the operation of the process until such time as the questions raised by the injunction suit might be determined. In this respect there is a...