Morrison v. Hammack

• Citation: 152 S.W. 494
• Parties: MORRISON v. HAMMACK et al.
• Decision Date: 20 November 1912
• Court: Court of Appeals of Texas

152 S.W. 494

MORRISON v. HAMMACK et al.

Court of Civil Appeals of Texas. Austin.

November 20, 1912.

Rehearing Denied December 21, 1912.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

Suit by T. A. Morrison against J. W. Hammack and others. Judgment for defendants, and complainant appeals. Affirmed.

T. R. Mears, of Gatesville, for appellant. R. F. Moore and McClellan & McClellan, of Gatesville, for appellees.

RICE, J.

On the 4th of November, 1911, appellant procured the issuance of an injunction from the district court of said county against J. W. Hammack, constable, and Mrs. Phetna Gregg, returnable to the ensuing term of said court, restraining the sale of a tract of land under execution issued out of justice court precinct No. (1), said county, belonging to appellant pending this litigation, alleging in his petition therefor that theretofore, to wit, on the 28th day of March, 1892, Sam Gregg, now deceased, recovered a judgment in said justice's court against him for the sum of $122.50, with 12 per cent. interest from date and costs, which said judgment had been kept alive by the timely issuance of executions thereon, as provided by law; that said Phetna Gregg, in whose name said writ issued, was the surviving wife of Sam Gregg, deceased, and owner of said judgment, she having made and filed an affidavit of said facts among the papers in said cause prior to the issuance of execution thereon; that on October 2, 1911, execution had been issued out of said justice's court upon said judgment, directed to said Hammack as constable, and was levied by him upon 90 acres of land out of the James Evetts survey in said county belonging to appellant, and who advertised the same for sale on the 7th of November, 1911, and who would, in accordance with the command of said writ, sell same if not restrained therefrom; that said judgment was satisfied, he having paid the same to Parker White, the attorney of said Gregg, and the same was no longer a subsisting demand against him; that such sale would cast a cloud upon his title, compelling him to institute suit to remove same; and that he had no other adequate relief or remedy at law. Wherefore he prayed for the issuance of a writ of injunction, and on final trial that said writ be made perpetual, and that said judgment of the justice's court be reformed so as to show that it had been paid and satisfied. Appellees, after a general denial, specially denied that said judgment had been paid by appellant, and, if same had been paid, that at the time of its alleged payment to White he was not the agent of plaintiffs, and was not authorized to receive same. There was a trial before the court without a jury, who rendered judgment in favor of appellees on this issue, dissolving said injunction, and ordering the sale of said land to proceed in accordance with law, from which judgment this appeal is prosecuted.

Appellant urges in his first assignment of error that the court erred in refusing to permit him to show that his financial condition had long been such that the judgment could theretofore have been collected, if any attempt had been made to do so. Appellees object to the consideration of said assignment, first, because the same does not conform to rule 25 (142 S. W. xii), in that it...