McDonald v. Tinnon

• Decision Date: 01 January 1857
• Citation: McDonald v. Tinnon, 20 Tex. 245 (Tex. 1857)
• Parties: HUGH K. MCDONALD AND ANOTHER v. C. D. TINNON AND ANOTHER.
• Court: Texas Supreme Court

20 Tex. 245

HUGH K. MCDONALD AND ANOTHER

v.C. D. TINNON AND ANOTHER.

Supreme Court of Texas.

1857.

Where a demurrer to a petition for injunction, under oath, has been sustained, the plaintiff has a right to amend as in other cases.

It has often been held by the court, that it is contemplated by our system of pleading to embrace the facts of the case in the petition and answer, and in such amendments thereto as may become necessary; and that to make an issue upon the facts set forth in the answer, it is not necessary to file a written denial of them. This applies to a plea in reconvention.

Appeal from Bastrop. Tried below before the Hon. Thomas H. DuVal. The facts are stated in the opinion.

Hancock & West, for appellants.

C. C. & A. D. McGinnis, for appellees. It is not the practice of the country to permit a party to amend a petition for injunction, after it has been sworn to and answered; for it is presumed a party has stated all the facts in the original petition, that he could swear to.

In answer to third assignment of error, it is sufficient to say, that the court had already decided that the allegations and averments in said petition, admitting them to be true, conferred no right on the appellants to enjoin the appellees from running their ferry boat; and the only question left for the jury to determine, was the amount of damage the appellees, or plaintiffs in reconvention in the court below, had sustained by being stopped by injunction wrongfully sued out by appellants, from running their ferry boat.

ROBERTS, J.

This was a suit by appellants, for an injunction to restrain appellees from using a ferry, for their own profit, across the Colorado river at the town of Bastrop. Appellees filed exceptions to the petition, and also a plea of reconvention, claiming damages against appellants for having wrongfully sued out the writ of injunction.

The court sustained the exceptions to the petition, refused to grant the appellants leave to amend, and submitted the cause to the jury upon the plea of reconvention. There was no decree of the court, dissolving the injuction, but a regular trial of the cause upon the cross-bill or plea of reconvention. Appellees obtained a verdict and judgment for five hundred and sixty-two 50-100 dollars, from which an appeal was taken to this court.

Out of the numerous errors assigned, it will be necessary to notice only one or two. After the exceptions to the petition were sustained, appellants asked leave...