Huston v. Berry
| Decision Date | 31 December 1848 |
| Citation | 3 Tex. 235 |
| Parties | A. HUSTON v. J. G. BERRY, Administrator |
| Court | Texas Supreme Court |
Appeal from San Augustine County.
A motion to dissolve an injunction may be taken and disposed of at any time before the cause is regularly reached on the docket or called for trial.
A party who is surprised by the decision of the court, in ruling out his testimony, may take a nonsuit, and afterwards move to set it aside and reinstate the cause on the docket, and an appeal will lie from the judgment of the court overruling such motion.
In our courts it is not proper for the judge to order a nonsuit in any case.
HENDERSON for appellant.
ARDREY for appellee.
This suit was brought by a petition for relief and for an injunction, enjoining an execution issued on a judgment obtained by the appellee against the appellant. At the next term of the court after the injunction had been obtained, before the suit had been regularly called for trial according to its standing on the docket, the appellee, by his counsel, moved the court to dissolve the injunction for want of equity in the petition; and also, at the same term, entered a motion to dissolve the injunction on the petition and answer. The appellant resisted these motions being taken up at that time, as appears by a bill of exceptions taken, insisting that neither of the motions could be taken up out of order, and before the case was regularly reached on the court docket. But the court overruled the objection, and dissolved the injunction on the first motion of the appellee, deciding that it was competent at that time to hear and determine either of the motions. The appellant then took a nonsuit and appealed. We believe the court was right in deciding that the two motions, one or both, could be taken up before the cause was regularly reached on the docket, because the granting either of them did not necessarily dispose of the case. The 54th section of the act regulating judicial proceedings, passed 13th May, 1846, only prohibits the taking up a motion that finally disposes of the case, before it was regularly called in the progress of disposing of the suits on the docket.
The 156th section of the same act provides that upon the dissolution of an injunction restraining the collection of money by an interlocutory order of the district court, if, after such interlocutory order of dissolution, the petition is required to stand over for trial or rehearing as an original suit, the defendant is required to give security for refunding the money if the injunction should be made perpetual upon a final hearing.
This section certainly does not include motions to dissolve injunctions as of a character to dispose of the case. If the motion had been to...
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Ford v. Houston & T. C. R. Co.
...of the court is not erroneous, the motion to reinstate is addressed to the discretion of the court, and its refusal is not error. Huston v. Berry, 3 Tex. 235; Easterling v. Blythe, 7 Tex. 210, 56 Am. Dec. 45; Osborne v. Scott, 13 Tex. 59; Lockett v. Railway Co., 78 Tex. 211, 14 S. W. 564. W......
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In re Energy Transfer Fuel, L.P.
...challenge the order on appeal. See, e.g., Boyd v. Kimbell, 21 Tex.Civ.App. 6, 7, 50 S.W. 634, 635 (1899, writ denied); Huston v. Berry, 3 Tex. 235, 236 (1848). We agree with ETF's assessment of the difficulty it would encounter in challenging the dismissal order here. However, no such chall......
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In re Energy Transfer Fuel, L.P.
...challenge the order on appeal. See, e.g., Boyd v. Kimbell, 21 Tex.Civ.App. 6, 7, 50 S.W. 634, 635 (1899, writ denied); Huston v. Berry, 3 Tex. 235, 236 (1848). We agree with ETF's assessment of the difficulty it would encounter in challenging the dismissal order here. However, no such chall......
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In re Energy Transfer Fuel, L.P.
...challenge the order on appeal. See, e.g., Boyd v. Kimbell, 21 Tex.Civ.App. 6, 7, 50 S.W. 634, 635 (1899, writ denied); Huston v. Berry, 3 Tex. 235, 236 (1848). We agree with ETF's assessment of the difficulty it would encounter in challenging the dismissal order here. However, no such chall......