Hornbuckle v. Luther

• Decision Date: 02 November 1907
• Citation: Hornbuckle v. Luther, 105 S.W. 995, 47 Tex. Civ. App. 352 (Tex. App. 1907)
• Parties: HORNBUCKLE et al. v. LUTHER.
• Court: Texas Court of Appeals

105 S.W. 995

HORNBUCKLE et al. v. LUTHER.

Court of Civil Appeals of Texas.

November 2, 1907.

Appeal from District Court, Bosque County; O. L. Lockett, Judge.

Suit by John T. Luther against M. F. Hornbuckle and another to enjoin the sale of certain land. From a judgment for complainant, defendants appeal. Reversed and remanded.

Jas. A. Graham, for appellants. Cureton & Cureton, for appellee.

CONNER, C. J.

This appeal is from a judgment perpetually enjoining the sale of certain lands in Bosque county owned by appellee and levied upon by virtue of an execution against him in favor of appellant A. G. Turner issued out of a justice's court of Wise county. The ground for the injunction is that the judgment had been paid through an attorney alleged to have represented appellant Turner. The trial was during the absence of the appellant Turner, who alone is materially interested in the controversy; the appellant Hornbuckle being the officer who levied the writ, and who is not otherwise concerned.

We think the court erred, as assigned, in refusing to grant appellants' motion for a new trial on the grounds therein set forth. It appears that the appellant Turner had answered, among other things, specially denying the alleged payment, and any authority in the agent who it was alleged had received it, and the cause had been set for trial on September 13, 1906. It further appears, in substance, from the motion, which is duly verified, that appellant Turner and his counsel are both nonresidents of Bosque county; that on the day before the cause was set for trial, viz., on September 12th, they both repaired in ample time under usual circumstances to the town of Bowie, Montague county, about 138 miles from the town of Meridian, in Bosque county, with the purpose of there taking a train that connected with the south-bound train of the Gulf, Colorado & Santa Fé, scheduled to arrive at Meridian some time during the night of September 12th; that it so happened that every train due to leave Bowie for Ft. Worth was late; that there was no other reasonable means of conveyance, and said appellant and his attorney took the first train for Ft. Worth, but arrived there some 15 minutes after the departure of the south-bound Santa Fé; that, upon inquiry of the agent of the Santa Fé, they were informed that no other train would leave Ft Worth for Meridian until about 7:50 a. m. of September 13th; that about 6 o'clock on the next morning a telegram was duly forwarded to the...