Hamburger v. Kosminsky
| Decision Date | 23 March 1901 |
| Parties | HAMBURGER et al. v. KOSMINSKY et al. |
| Court | Texas Court of Appeals |
Appeal from district court, Bowie county; J. G. Russell, Judge.
Action by M. Kosminsky and another against Hamburger Bros. & Co. to restrain defendants from enforcing an execution. From a judgment granting a perpetual injunction, defendants appeal. Affirmed.
S. J. Henry, for appellants. P. A. Turner, for appellees.
Hamburger Bros. & Co. brought suit on debt in the district court of Bowie county against Gus Less, and caused a writ of attachment to be issued and levied on certain goods, etc., as the property of Less, but which were claimed by M. Kosminsky, who was made a party to the suit. The goods, etc., were sold under order of the court for $925, which sum was paid into court. On March 16, 1898, judgment was rendered in favor of the plaintiffs in said suit against Less for $1,080, with interest from that date at the rate of 6 per cent. per annum, and for all costs of suit, and for a foreclosure of their lien on the attached property and the proceeds of the sale thereof; and the clerk of the court was directed to pay to them the proceeds of said sale. Judgment also went in their favor against Kosminsky on his claim of ownership of said goods, etc., and he appealed. The judgment was affirmed by the court of civil appeals (51 S. W. 53), and the supreme court refused an application for writ of error. The mandate of the appellate court was duly issued, and was filed in the district court on November 15, 1899. The clerk of said court paid to the plaintiffs in said suit the sum of $400 on December 22, 1899, and the further sum of $312.90 on January 23, 1900. Kosminsky paid all the costs, both of the trial court and of the appellate court, and on March 21, 1900, tendered to the plaintiffs in said judgment the sum of $268.35, which sum he claimed to be the balance due on the judgment. The said plaintiffs refused to receive the money tendered as a satisfaction in full of the judgment, claiming that there was then due on the judgment the sum of $510, and soon thereafter they caused an execution to be issued on the judgment for said last-named sum. The execution was against Kosminsky and the sureties on his supersedeas appeal bond, and was levied on property belonging to Kosminsky and one of the sureties. Thereupon Kosminsky and one of his sureties applied for a writ of injunction, alleging the aforesaid facts, and offering to pay the sum tendered by Kosminsky in satisfaction of the judgment, and asking that the plaintiffs in execution be restrained from enforcing the execution for any amount in excess of said sum. A temporary injunction was granted, and on a final trial on October 26, 1900, the same was made perpetual, upon condition that the plaintiffs in the injunction suit paid the plaintiffs in execution the sum of $268.32 within three days; otherwise, the execution should be enforced for that amount. The defendants in the injunction suit have appealed from said judgment.
The appellants assailed the petition for injunction by demurrer on the ground that the same was in effect an attack on the validity and correctness of the judgment in favor of Hamburger Bros. & Co. against Less and Kosminsky. The plea demurred to presented the issue that the defendants in said judgment had paid and tendered the entire amount due on the judgment according to its face and terms,...
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Yonack v. Emery
...rights of appellants. Spann v. Sterns' Adm'rs, 18 Tex. 556; Maloney v. Eaheart, 81 Tex. 281, 284, 285, 16 S. W. 1030; Hamburger v. Kosminsky (Tex. Civ. App.) 61 S. W. 958. However, if plaintiff's main contention is correct, he was not required to pay or offer to pay any sum as a condition p......
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Watchtower Mut. Life Ins. Co. v. Davis, 13461.
...the provisions of the statute, costs in the case. Interest on costs cannot be charged until they are paid by plaintiff. Hamburger v. Kosminsky (Tex.Civ.App.) 61 S.W. 958. The assignment last discussed is immaterial, since we are reversing this case on other grounds; we would not reverse the......
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Twichell v. Askew
...the ground that part of the amount is unjust or void, he must tender that part of said judgment which he shows to be valid. Hamburger v. Kosminsky, 61 S. W. 958; Sayles' Civil Statutes, art. 2990. Appellant's petition before us shows that all of the obligors in said note were equally liable......
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Williams v. Croom
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