Hawkins v. Graham
| Decision Date | 27 March 1935 |
| Docket Number | No. 9726.,9726. |
| Citation | 81 S.W.2d 754 |
| Parties | HAWKINS v. GRAHAM. |
| Court | Texas Court of Appeals |
Appeal from District Court, Hidalgo County; Fred E. Bennett, Judge.
Suit by E. A. Graham against J. V. Hawkins. From an order granting a temporary injunction, defendant appeals.
Reversed, and injunction dissolved.
McCloskey & Wasaff, of San Antonio, for appellant.
J. F. Carl, of Edinburg, for appellee.
An execution and order of sale duly issued out of a district court of Webb county was properly delivered to a constable in Hidalgo county, directing him to seize and sell as under execution an oil well drilling outfit located in the latter county, as the property of the judgment creditor, J. V. Hawkins. The constable levied upon the property and advertised the same for sale as provided by law, but before the day of sale E. A. Graham filed this suit to enjoin the threatened sale, upon the ground that he was the owner of the seized property. Graham also prayed for title and possession of the property, alleged to be of the value of $1,000, and for $2,000 by way of rentals thereon, or, in the alternative, if the property could not be found, for damages in the sum of $3,000. The trial court granted the temporary injunction, and Hawkins has appealed from that order.
Appellant predicates his appeal upon the ground that appellee was not entitled to injunctive relief because he had not negatived the availability of the trial of right of property as an adequate remedy at law. In this connection, appellee alleged only, in effect, that the seized property belonged to him, and that Hawkins and his associates were insolvent and therefore could not respond to his claim for damages.
Under the statutory remedy of trial of right of property it is provided that: "Whenever a writ of execution * * * is levied upon personal property, and such property, or any part thereof, shall be claimed by any person who is not a party to such writ, such person or his agent or attorney may make affidavit that such claim is made in good faith, and present such affidavit to the officer who made such levy." Article 7402, R. S. 1925.
It is further provided (article 7403 et seq.) that upon presentation, to the levying officers, of such affidavit, accompanied by the bond therein provided for, the property shall be delivered to the claimant and considered in custodia legis, and remain in his possession until the question of his title...
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Long v. Castaneda
...These rules relate to trial of right of property. In connection with this argument appellee quotes from Hawkins v. Graham, 81 S.W.2d 754 (Tex.Civ.App.--San Antonio 1935, writ ref'd). The Hawkins case says in effect, that if the appellant had pursued the remedy of the trial of right of prope......
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Magnolia Petroleum Co. v. De Garcia, 10638.
...for an injunction. Gillis v. Rosenheimer, 64 Tex. 243, 246; Harding v. W. L. Pearson & Co., Tex.Com.App., 48 S.W.2d 964; Hawkins v. Graham, Tex.Civ.App., 81 S.W.2d 754. The Austin Court of Civil Appeals, in the case of Wertheimer v. Walker, 96 S.W.2d 831, 833, in announcing the rule say: "A......
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Lewis v. Clark, 10663.
...available to the appellee. Therefore, under the authorities, the trial court erred in granting a temporary injunction. Hawkins v. Graham, Tex.Civ.App., 81 S.W.2d 754; West Texas Utilities Company et al. v. Farmers' State Bank in Merkel, Tex.Civ.App., 68 S. W.2d 648, and authorities cited on......