Leachman v. Capps
| Decision Date | 15 June 1896 |
| Citation | 36 S.W. 250 |
| Parties | LEACHMAN v. CAPPS et al. |
| Court | Texas Supreme Court |
Application by George S. Leachman for writ of injunction to restrain the sale of property belonging to the applicant, under an execution on the judgment in favor of Capps & Cantey. An order granting perpetual injunction having been reversed by the court of civil appeals, plaintiff brings error. Reversed.
For former report, see 35 S. W. 397.
John Bookhout, for plaintiff in error. Harris & Knight, for defendants in error.
This suit was filed by plaintiff in error in the district court of Dallas county against the defendants in error and the sheriff of that county, to enjoin the sale of certain property of the plaintiff under an execution issued out of the district court of Tarrant county upon a judgment rendered in that court in favor of the defendants in error against the plaintiff in error. It was claimed in the petition that the execution was void, because the party whose property the officer was commanded to seize and sell was not named in the writ, and it was also alleged that the real estate levied upon was the homestead of the plaintiff in error, and that he was the head of a family, and that, therefore, it was not subject to forced sale. Two exceptions were filed to the petition. The first was as to so much thereof as sought to restrain the sale of the real estate, for the reason, as alleged, that it was the homestead of the plaintiff. It was claimed in the exception that, as to that matter, the plaintiff had "an ample remedy at law." The second was upon the ground that the attack upon the execution was collateral, and that it could only be made in the court from which the writ issued. The court, as appears from its judgment, overruled the first exception, but did not pass upon the second, and upon the trial entered a decree enjoining the plaintiffs in execution and the sheriff from selling the property claimed as a homestead. It is shown, however, by the statement of facts, that during the progress of the trial, and after the execution was offered in evidence, the court held it absolutely void, and refused to proceed further with the case, although the plaintiff insisted upon his right to show that the real estate levied upon was his homestead. Neither the execution nor the sale of any other property was enjoined. The defendants appealed to the court of civil appeals, where, of...
To continue reading
Request your trial
-
Glenn v. Connell
...4646 and 4656, R. S. 1925, and the following authorities: Switzer v. Smith (Tex. Com. App.) 300 S. W. 31, 68 A. L. R. 377; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250; Seligson v. Collins, 64 Tex. 314; Cook v. Baldridge, 39 Tex. 250; Salamy v. Bruce (Tex. Civ. App.) 21 S. W.(2d) 380; Darli......
-
Melton v. American Surety Co.
...letter of the statute: Ins. Co. v. Klaras (Tex. Com. App.) 222 S. W. 208; Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250; Kruegel v. Rawlins (Tex. Civ. App.) 121 S. W. 216; Ketelsen v. Pratt (Tex. Civ. App.) 100 S. W. 1172; Baker v. Crosbyton, ......
-
Stewart v. Adams
...1041; Seligson & Co. v. Collins, 64 Tex. 314; State Mortgage Corporation v. Ludwig, 121 Tex. 268, 48 S.W.2d 950, 953; Leachman v. Capps & Canty, 89 Tex. 690, 36 S. W. 250; Switzer v. Smith, Tex.Com.App., 300 S.W. 31, 68 A.L.R. 377; Watson v. Rochmill, 137 Tex. 565, 155 S.W.2d 783, 785, 137 ......
-
Switzer v. Smith
...the statute is imperative — the writ of injunction must be returned to the court from which the order of sale issued." In Leachman v. Capps, 89 Tex. 690, 36 S. W. 250, Chief Justice Gaines held the statute to be jurisdictional. The Chief Justice there made a clear distinction between attack......