Peevehouse v. Smith
| Decision Date | 15 January 1913 |
| Citation | 152 S.W. 1196 |
| Parties | PEEVEHOUSE et al. v. SMITH et al. |
| Court | Texas Court of Appeals |
Appeal from Navarro County Court; J. M. Blanding, Judge.
Action by J. J. Smith and others against W. L. Peevehouse and others, who filed a cross-action. From a judgment for plaintiffs, defendants appeal. Affirmed.
Callicutt & Call, of Corsicana, for appellants. Richard Mays, of Corsicana, for appellees.
In 1907, a firm styled Wood Bros. obtained a judgment against J. J. Smith in a justice of the peace court. Thereafter Wood Bros. transferred the judgment to H. C. Gillean, and on August 4, 1909, Gillean caused a pluries execution to be issued upon the judgment and placed in the hands of W. L. Peevehouse, a constable, and levied upon an automobile and motorcycle then in the possession of J. J. Smith. The levy was made August 6, 1909; and, on the same day, the constable advertised the property for sale August 21, 1909. On August 10, 1909, J. J. Smith and two others, as his sureties, executed a replevy or delivery bond to Peevehouse, the constable, in the sum of $250, the value of the automobile; and thereupon and on that day the constable delivered the automobile back to Smith. On August 12, 1909, J. J. Smith instituted this suit against Peevehouse and Wood Bros., in which he alleged that he was the head of a family, and that the automobile was exempt from forced sale, and he prayed for an injunction restraining Peevehouse from selling it. He also sought to recover from the defendants certain alleged damages. The petition was verified by the plaintiff therein, and upon its presentation to the county judge the latter caused a temporary injunction to be issued thereon, restraining the constable from selling or interfering with Smith's use of the automobile until the further order of the county court. The case was not tried until 1911, and it went to trial upon the plaintiff's petition and an amended original answer filed by the defendants referred to and H. C. Gillean, who was impleaded by Wood Bros., and a supplemental petition filed by the plaintiff. The answer of the defendants contained a general demurrer, numerous special exceptions, and a special plea, alleging that the automobile was not exempt property; that it had been delivered back to Smith upon his execution of the delivery bond, and therefore he had wrongfully sued out the injunction; and they prayed judgment against Smith and the sureties on his injunction bond for the amount of the judgment in the justice's court against him, for $50 attorney's fees, and that the injunction be dissolved. The defendants filed a supplemental answer denying the allegations in the plaintiffs' petition, and reasserting that Smith was not entitled to an injunction for substantially the same reasons previously stated in their answer. In obedience to a peremptory instruction given by the court, the jury returned a verdict finding that the automobile was exempt from forced sale, and that the plaintiff was entitled to have the injunction perpetuated, finding against him upon his claim for damages, and finding a general verdict for the defendants Wood Bros. Judgment was rendered in accordance with the verdict, and the...
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