International Harvester Credit Corp. v. Rhoades
| Decision Date | 12 December 1962 |
| Docket Number | No. 11058,11058 |
| Citation | 363 S.W.2d 397 |
| Parties | INTERNATIONAL HARVESTER CREDIT CORPORATION et al., Appellants, v. Miller RHOADES, Appellee. |
| Court | Texas Court of Appeals |
Bryan, Suhr & Bering, James P. Bailey, Houston, Dan Moody, Jr., Austin, for appellants.
David L. Tisinger, Austin, for appellee.
Miller Rhoades brought two suits in the 126th District Court of Travis County. In the first suit International Harvester Company and Ed Kyrish were defendants and in the second International Harvester Credit Corporation and Ed Kyrish were defendants. In each of the suits Rhoades sought to cancel and rescind certain contracts covering the sale of ten trucks purchased from International Harvester Company and for the cancellation of purchase money notes secured by chattel mortgages given in part payment of the purchase price of the trucks which notes were held by International Harvester Credit Corporation, and for damages from all defendants for loss of his investment, together with foreclosure of an alleged equitable lien on the trucks in question to secure his damages and investment. He also prayed for the appointment of a receiver to sell the trucks, which relief has been abandoned, and for injunctive relief. An ex parte restraining order was issued in each suit restraining the defendants from taking possession of the trucks and in the second suit International Harvester Credit Corporation was restrained from transferring certain promissory notes and chattel mortgages executed and delivered by Rhoades in connection with the purchase and sale of the trucks which had been acquired by International Harvester Credit Corporation. For brevity, International Harvester Corporation will be referred to as 'Harvester Company' and International Harvester Credit Corporation will be referred to as 'Credit Corporation.'
In the second suit, Credit Corporation answered defensively and filed a cross-action against Rhoades for debt, foreclosure of certain chattel mortgage liens given to secure the payment of the promissory notes executed by Rhoades in part payment for the trucks and as cross-plaintiff, made application for and obtained a writ of sequestration of the trucks covered by the chattel mortgages. Sequestration bond of $172,000.00 was filed and the writ was issued and delivered to the Sheriff of Travis County, Texas.
Rhoades, under a second application for temporary injunction in the second suit, obtained two ex parte restraining orders, one of which restrained Credit Corporation, as cross-plaintiff, from 'issuing or serving or causing to be served any writ of sequestration, attachment or other legal process * * *' The second order restrained the Sheriff of Travis County, Texas, from executing the writ of sequestration which had been issued and delivered to him and the Sheriff was made a party defendant. Harvester Company, Credit Corporation and Kyrish then filed motions to dissolve all restraining orders theretofore entered and Credit Corporation filed its reply to Rhoades' second application for temporary injunction.
The Trial Court consolidated the two suits and having heard the second application for a temporary injunction and motions to dissolve, overruled the motions to dissolve and granted the temporary injunction, by the terms of which Harvester Company, Credit Corporation and Kyrish were enjoined and restrained 'from pursuing any effort to sequestrate, or sell through sequestration, the ten International trucks and related equipment described in the pleadings of the plaintiff and defendants, and the defendants are further restrained and enjoined from indirectly taking any other action calculated to move, or cause to be moved, the said trucks and equipment from their present location, it being the intention of this order that the status quo shall be preserved and maintained' upon the filing of an injunction bond in the sum of $5,000.00. All defendants have appealed from the order granting the temporary injunction.
This appeal is predicated upon three points of error: (1) that since Rhoades had a complete, clear and adequate remedy at law, the Trial Court erred in granting his application for temporary injunction; (2) that Rhoades having failed to allege and prove a threatened irreparable injury for which he had no adequate remedy at law, the Trial Court erred in granting the temporary injunction, and (3) that Rhoades having failed to prove any right to the possession of the trucks in question, the temporary injunction should not have been granted.
After the filing of the cross-action by Credit...
To continue reading
Request your trial
-
Ballenger v. Ballenger
...pending an outcome of the litigation. Bank of the Southwest v. Harlingen National Bank, 662 S.W.2d at 116; International Harvester Credit Corp. v. Rhoades, 363 S.W.2d 397 (Tex.Civ.App.--Austin 1962, no writ). The test for determining whether an existing remedy is adequate is whether such re......
-
Mathis v. Nathanson, No. 03-03-00123-CV (Tex. App. 1/29/2004)
...Gas, 828 S.W.2d at 533; Tom James Co. v. Mendrop, 819 S.W.2d 251, 253 (Tex. App.—Fort Worth 1991, no writ); International Harvester Credit Corp. v. Rhoades, 363 S.W.2d 397, 400 (Tex. Civ. App.—Austin 1962, no writ). A remedy is inadequate if damages cannot be calculated or if the defendant ......
-
Stewart Beach Condo. Homeowners Ass'n, Inc. v. Gili N Prop Invs., LLC
...court cannot issue an injunction when the party seeking the injunction has a plain and adequate legal remedy. Int'l Harvester Credit Corp. v. Rhoades, 363 S.W.2d 397, 399 (Tex.Civ.App.–Austin 1962, no writ). A temporary injunction is, however, appropriate to block foreclosure of real proper......
-
Bank of Southwest N.A., Brownsville v. Harlingen Nat. Bank, 13-83-370-CV
...court. Krenek v. South Texas Electric Coop., Inc., 502 S.W.2d 605 (Tex.Civ.App.--Corpus Christi--1973, no writ); International Harvester Credit Corp. v. Rhoades, 363 S.W.2d 397 (Tex.Civ.App.--Austin 1962, no writ). Bagley v. Higginbotham, 353 S.W.2d 868 (Tex.Civ.App.--Beaumont 1962, writ re......