Morgan v. Massillon Engine & Thresher Co.
Decision Date | 01 June 1925 |
Docket Number | (No. 1244.)<SMALL><SUP>*</SUP></SMALL> |
Citation | 274 S.W. 255 |
Parties | MORGAN v. MASSILLON ENGINE & THRESHER CO. et al. |
Court | Texas Court of Appeals |
Appeal from District Court, Chambers County; J. M. Combs, Judge.
Trespass to try title by George L. Morgan against the Massillon Engine & Thresher Company and others. Judgment for defendants on their cross-action, and plaintiff appeals. Affirmed.
J. R. Hill, of Houston, for appellant.
A. W. Marshall and H. H. Jackson, both of Anahuac, E. B. Pickett, Jr., of Liberty, and H. E. Marshall, of Houston, for appellees.
We take the following statement of the nature, result and issues in this case from appellant's brief:
A full and complete statement of the facts involved in the injunction proceeding, wherein the district court of Chambers county restrained the execution of the judgment in favor of the Massillon Engine & Thresher Company against the Barrows, is found in the decision of the Supreme Court reported in (Tex. Com. App.) 231 S. W. 368. We quote as follows from that opinion:
After disposing of the legal issues involved, the Supreme Court remanded the case with the following instructions:
While the issuance of the execution in the judgment of Massillon Engine & Thresher Company against the Barrows was enjoined by the district court of Chambers county, and during all the time that case was on appeal, through the appellate courts of Texas until its final disposition by the Supreme Court on the 21st day of June, 1921, the plaintiff in that case was without legal authority to issue execution. Had execution issued on that judgment, it would have been void, plaintiff would have been subject to contempt proceedings, and any sale made under such execution would have been void. Article 4660, R. S. of Texas; article 4661, R. S. of Texas; Ward v. Billups, 76 Tex. 466, 13 S. W. 308; Ryan v. Raley, 48 Tex. Civ. App. 187, 106 S. W. 750; Seligson v. Collins, 64 Tex. 314; 17 Cyc. 1007, § 4; Lindsay v. Norrill, 36 Ark. 545; Muncaster v. Mason, 17 Fed. Cas. 983, 2 Cranch C. C. 521; Noland v. Seekright, 6 Munf. (Va.) 185; Wakefield v. Brown, 38 Minn. 361, 37 N. W. 788, 8 Am. St. Rep. 671.
It is the modern rule that the injunction suspends the running of the statute. 17 Cyc. 1008. Therefore appellant's first issue, as stated in his brief copied above:
"Where a sale of land under an order of sale is temporarily restrained and more than ten years elapse after the date of said order of sale and before the injunction suit is finally disposed of, does the granting of said restraining order relieve the plaintiff in execution of the duty of complying with article 3717, Complete Texas Statutes, 1920 [or Vernon's Sayles' Ann. Civ. St. 1914] in order to keep the judgment from becoming dormant?"
— must be answered, in view of the authorities cited, which hold that an execution cannot lawfully issue while the enforcement of the judgment is restrained; that the failure to issue execution does not make the judgment dormant. It follows that the judgment obtained by the Massillon Engine & Thresher Company against the Barrows in 1905 was not dormant when the order of sale was sued out in this case, under which the land was finally sold.
Appellant states the second issue as follows:
"In view of article 3723, Complete Texas Statutes, 1920 [or Vernon's Sayles' Ann. Civ. St. 1914] on judgment rendered prior to the death of defendant, can a valid order of sale issue thereon, and will a sale of land by the sheriff in virtue thereof convey title?"
Article 3723 is as follows:
"Where a sole defendant dies after judgment for money against him, execution shall not issue thereon, but the judgment may be proved up and paid in due course of administration."
In view of the mandate of the Supreme Court in Massillon Engine & Thresher Co. v. Barrow, supra, we do not think that article...
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