Green v. Banks

• Decision Date: 01 January 1859
• Parties: JOHN A. GREEN v. JOHN B. BANKS AND ANOTHER.
• Court: Texas Supreme Court

24 Tex. 522

JOHN A. GREEN

v.JOHN B. BANKS AND ANOTHER.

Supreme Court of Texas.

1859.

The dissolution of an injunction, on motion of one of two defendants, claiming rights independant of each other, is an interlocutory order.

The partial dissolution of an injunction upon bill and answer, on motion, and not otherwise disposing of the case, is but an interlocutory order.

The effect of the decision on such motion, is, that if the plaintiff and defendant can establish by proof, the facts, as they have respectively alleged them, then the decree will be the legal consequence; or that (the injunction being partially dissolved) a part of the equity of the petition, not having been answered, therefore, as to it, the injunction will be continued in force. The disputed facts are not determined on such a motion.

This court has often decided, that a judgment merely for costs, was not a final judgment; and certainly it is not, where it is expressly stated in the decree, that the plaintiff's petition is retained for a particular purpose, which was the moving cause of the suit.

ERROR from Travis. Tried below before the Hon. Thomas H. Duval.

This suit was instituted by John A. Green against John B. Banks and Henry Ross. The facts sufficiently appear from the opinion.

J. A. & R. Green for the plaintiff in error.

Haralson, Flournoy & Robards, and Shelly & Carrington, for the defendants in error.

ROBERTS, J.

This is a suit instituted by Green, in the district court of Travis county, to enjoin Banks and Ross, and the sheriff of said county, from further proceeding with two judgments and executions in favor of Banks, and of Ross against Smith, which were levied on a negro woman, Riva, and her child, as the property of Smith, and claimed by Green, under a deed of trust from Smith, executed prior to the levy. It also seeks to enjoin Banks and Ross from any further levies upon any other of the trust property, so claimed by Green. It also seeks to consolidate this case with the case of Ross v. Green, then pending in the district court of Travis county, for the trial of the right of property to a slave named Simon, that had been levied on by an execution in favor of Ross, issued on the same judgment. The injunction was granted by the district judge, as prayed for, and the writ issued.

Ross is served with the citation and writ of injunction. Banks is served with the writ of injunction, but no citation for him appears in the record. “The defendant, by his attorney,” moves the court to dissolve the injunction, upon various grounds set forth in the motion, which is signed by several gentlemen, as “attorneys for defendant.” Upon the hearing of this motion, “the court ordered that the said injunction be dissolved, except so far as it restrains the sale of Riva and child, described in plaintiff's petition.” This order was made on the 22d July, 1856. The motion above referred to, was filed on the 19th of June, 1856; and on the same day, Banks filed general exceptions, and an answer, which prays a dissolution of the injunction, and that the petition be dismissed.

On the 4th of August, 1856, the following entry was made in the case: “This day, coming on for hearing, on the petition and answer of the parties, on motion to dissolve the injunction heretofore granted, and the parties having announced...