Long v. Castaneda

• Decision Date: 30 December 1971
• Docket Number: No. 621,621
• Citation: 475 S.W.2d 578
• Parties: George L. LONG, Appellant, v. Claudio CASTANEDA, Sheriff of Hidalgo County, Texas, Appellee.
• Court: Texas Court of Appeals

Page 578

475 S.W.2d 578

George L. LONG, Appellant, v. Claudio CASTANEDA, Sheriff of Hidalgo County, Texas Appellee.

No. 621.

Court of Civil Appeals of Texas Corpus Christi.

Dec. 30, 1971.

Second Motion for Rehearing Denied Jan. 20, 1972.

Cox & Patterson, J. W. Patterson, Jr., McAllen, for appellant.

Ewers, Toothaker, Ewers, Abbott, Evins & Talbot, O. C. Hamilton, Jr., Joe Friend, McAllen, for appellee.

OPINION ON REHEARING

NYE, Justice.

Our original opinion is withdrawn and this opinion is substituted therefor. This suit was filed by the plaintiff to enjoin the execution sale of a mobile home by the Sheriff of Hidalgo County, Texas, and for damages against the Sheriff and a bank. On a hearing following the granting of a temporary restraining order, the trial court entered its interlocutory order refusing to grant a temporary injunction. Plaintiff Long has perfected his appeal to this Court.

George L. Long and the Northeast National Bank of San Antonio, Texas, as plaintiffs, brought suit against the Sheriff of Hidalgo County and the First National Bank and Trust Company of Lincoln, Nebraska. Long alleged that he is the owner of a 1968 Aristocraft Mobile Home; that the San Antonio Bank is the owner of a security interest or first mortgage interest in the mobile home; and that the Sheriff and the Nebraska Bank caused Long's mobile home to be seized and ordered sold on the 18th day of January, 1971 to satisfy a judgment that the Nebraska Bank has against the former owner of Long's mobile home. Plaintiffs contend that irreparable injury will occur to them if the Sheriff is permitted to sell the mobile home; that a purchaser at such sale would be at liberty to remove the home from the jurisdiction of this court and even from the continental limits of the United States. Plaintiffs further allege that they are the owners of a superior legal title to the home together with the exclusive right, title and interest in and to the home, and that when given a full and complete hearing they will prove their exclusive title and interest in the mobile home. Plaintiffs allege that they have no adequate remedy at law available to them and that because of the wrongful levy and taking of the mobile home from their property they have been damaged by the Nebraska Bank and Sheriff in the sum of $2500.00. Attached to their petition is a bill of sale to the trailer, a check, a note and other items evidencing a sale and verifications of their contentions.

The facts developed during the hearing on the temporary injunction show that Mrs. Vivian L. Black and her husband Walter I. Black were the previous owners of the mobile home. Walter I. Black died and Mrs. Black sold the home to Long. Long gave Mrs. Black his check for $3500.00 with instructions to deliver it to the San Antonio Bank to pay off the lien. The approximate balance of the purchase price (i.e. $4500.00) was paid to Mrs. Black by Long.

On or about February 20, 1970, the First National Bank and Trust Company of Lincoln, Nebraska, referred to as the Nebraska Bank, took judgment against Walter I. Black and Vivian L. Black. Long never knew of this judgment. An execution was issued on the judgment and delivered to the Hidalgo County Sheriff on October 19, 1970, several months after Black had died. The record shows that the attorney representing the Nebraska Bank ¹ ascertained that the title to the trailer was in the name of Walter I. and Vivian L. Black and that the first lienholder was the Northeast National Bank of San Antonio, Texas. On January 5, 1971, the attorney for the Nebraska Bank called the Northeast Bank to determine the amount of the lien. The San Antonio Bank advised the attorney for the Nebraska Bank that the lien had been paid off on January 5, 1971, and that the Bank did not then have any claim to it . ²

The very next day, on January 6, 1971, the appellee Sheriff levied execution on the mobile home, taking it from Long's property and storing it on County property where it now remains. On January 8, 1971, Long discovered that the trailer was missing. He immediately reported a theft to the McAllen Police Department, which referred him to the Sheriff's Office. The Sheriff advised Long that they had custody of the trailer and that the Sheriff had posted notice of execution sale to be held on January 18. Long filed this suit against the Sheriff and on Friday, January 15 the trial court issued its temporary restraining order to prevent the sale of the mobile home on January 18. The hearing on the temporary injunction was heard on January 21, 1971. At the conclusion of the hearing, the trial court announced that the temporary injunction was denied and the temporary restraining order was dissolved. Long has perfected his appeal from the interlocutory order of the trial court. He posted a supersedeas bond while the trailer remains in the custody of the Sheriff appellee.

The Sheriff contends that he has the right to sell the trailer and by argument in his brief insists he will again attempt to sell the trailer before the case is tried on its merits. The appellee Sheriff makes additional contentions in answer to appellant's ten points of error, the first being that the appellant failed to show the absence of an adequate remedy at law; and second, that there was evidence that the trailer belongs to the judgment debtor; therefore, he is justified in conducting an execution sale.

The Sheriff, on the other hand, in answering plaintiff's petition, advised the court that he would continue to obey all orders issued by the court and '. . . if this Court should make a judicial determination that the house trailer in question is for any reason not subject to execution, then this defendant will cease and desist all efforts to levy on and sell the above referred to house trailer and will return it to its lawful owner or will abide by such other orders as this Court herein may enter.' The Sheriff has possession of the trailer, subject to plaintiff's supersedeas bond.

The rule of law in Texas is that the trial court is clothed with broad discretion in determining whether to issue or whether not to issue a temporary injunction to preserve the rights of the parties pending a final trial of the case. When that discretion is exercised, its orders should not be overturned unless the record discloses a clear abuse of discretion. Texas Foundries, Inc. v. International Moulders & F. Workers' Union, 151 Tex. 239, 248 S.W.2d 460 (Tex.Sup.1952). The extraordinary writ of injunction will not be granted where there is a plain and adequate remedy at law. Story v. Story, 142 Tex. 212, 176 S.W.2d 925 (1944).

Appellee defends the action of the trial court by contending that Long had an adequate remedy at law available to him under Rules 717 through 736, Texas Rules of Civil Procedure. 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 property, it would have afforded him Every protection sought in his equitable proceeding. (Emphasis supplied.) Continuing, the appellee argues that since Long did not allege any facts that would excuse him from pursuing this remedy, Long was not entitled to the extraordinary writ of injunction which he sought. Therefore, the trial court was correct. The Sheriff makes one additional argument which is to the effect that even if the trailer is sold, since the trailer as such is not unique, money damages should be adequate for Long.

The general rule that the extraordinary writ of injunction will not be granted where there is a plain and adequate remedy at law is not rigidly enforced by the courts in this State. Many cases recognize the exceptions to the rule: That the relief at law must be 'plain and adequate', or it must be 'as practical and efficient to the ends of justice and its prompt administration', as is the equitable remedy of injunction. Brazos River Conservation & Reclamation District v. Allen, 141 Tex. 217, 171 S.W.2d 847 (1943); Story v. Story, supra.

Many of the older cases that have dealt with the denial of an equitable remedy because of an adequate legal remedy, did so when our courts of law and equity were separate. Today the injunction will not be granted if there is an adequate and plain remedy at law, but such remedy must be a prompt and efficient remedy, not merely an alternate remedy. If the plaintiff on a trial of the merits shows a clear right to be left in his undisturbed possession of his trailer by a finding of ownership, and/or the Nebraska Bank insists on invading that right without perfecting its execution (as we discuss hereafter) such invasion or future attempt should be prevented in its inception by injunction, instead of allowing the injury to be inflicted, and then leaving the party to his (maybe) legally adequate, but in fact generally very inadequate remedy of an action for damages. Summer v. Crawford, 91 Tex. 129, 41 S.W. 994 (1897).

The contention that the trial of the right to this property is Long's only remedy is untenable under the undisputed facts before us . First, Long is suing for damages as well as possession. Second, if upon a final trial it is determined that Long is not the legal owner of the trailer but is subrogated to the San Antonio Bank's mortgage, a trial of the right of property cannot determine the question of priority of liens. Raysor v. Reid & Smith, 55 Texas 266 (1881); Groesbeck v. Evans, 40 Tex.Civ.App. 216, 83 S.W. 430 (1904). This remedy which is suggested by appellee, is only one of several alternate remedies that Long could have pursued if all of the parties involved became parties to the suit. Carmichael v. Page, 32 S.W.2d 674 (Tex.Civ.App.--Texarkana 1930, writ ref'd). The status quo of this subject property must remain unchanged until the trial court...