Powers v. Temple Trust Co., No. 1532-6284.

CourtSupreme Court of Texas
Writing for the CourtSmedley
Citation78 S.W.2d 951
PartiesPOWERS v. TEMPLE TRUST CO.
Decision Date20 February 1935
Docket NumberNo. 1532-6284.
78 S.W.2d 951
POWERS
v.
TEMPLE TRUST CO.
No. 1532-6284.
Commission of Appeals of Texas, Section B.
February 20, 1935.

Error to Court of Civil Appeals of Third Supreme Judicial District.

Action by L. G. Powers against the Temple Trust Company. To review a judgment of the Court of Civil Appeals [50 S.W.(2d) 362] dissolving a temporary injunction issued in behalf of plaintiff, plaintiff brings error.

Judgment of Court of Civil Appeals affirmed.

Dibrell & Starnes and J. B. Dibrell, Jr., all of Coleman, for plaintiff in error.

Page 952

Critz & Woodward, of Coleman, and Jno. B. Daniel, of Temple, for defendant in error.

SMEDLEY, Commissioner.


Plaintiff in error, maker of a series of promissory notes payable to defendant in error, filed suit in the district court of Coleman county, Tex., on November 25, 1931, for the cancellation of the notes and the lien securing them, alleging that the loan contract evidenced by the notes and the deed of trust was usurious and that the principal indebtedness was more than discharged by applying to it interest payments which he had made more than two years before the suit was filed, and by offsetting against it double the amount of interest payments made by him within two years before the filing of the suit. He further alleged that defendant in error was falsely claiming that there was still a balance owing on said notes, and was threatening foreclosure proceedings, and that unless restrained by writ of injunction it would either foreclose under the power of sale contained in the deed of trust, or would institute and prosecute a suit for foreclosure in the district court of Bell county, Tex., or would transfer the notes and lien to third parties and instigate them to institute and prosecute such suit.

On the day the suit was filed the district judge, without notice, granted a temporary injunction restraining defendant in error from transferring the notes and the lien and from foreclosing the deed of trust under the power of sale contained therein and from instituting and prosecuting any suit for foreclosure of the lien in the district court of Bell county, or in any court other than by cross-action in the suit in Coleman county. Injunction bond was filed December 9, 1931, and on that day the writ of injunction was issued. No citation was issued until December 9, 1931. Both the writ of injunction and the citation were served on defendant in error on December 17, 1931.

Defendant in error, on December 5, 1931, after this suit was filed in Coleman county but before citation was issued, filed suit in the district court of Bell county, where the notes were payable, for the recovery of an unpaid balance of principal with interest alleged to be due and for foreclosure of the lien. Citation in that suit, issued the day the suit was filed, was served on plaintiff in error on December 7, 1931.

Defendant in error's motion to dissolve the injunction was heard by the district court of Coleman county and overruled on January 28, 1932. The Court of Civil Appeals on appeal from that order dissolved the temporary injunction. Temple Trust Co. v. Powers, 50 S. W.(2d) 362.

The only question presented here is whether the Court of Civil Appeals correctly dissolved the injunction.

There is no evidence that plaintiff in error filed this suit without a bona fide intention that process be promptly issued and served, and no evidence that the delay in the issuance of citation was attributable to him. In the absence of proof it will not be presumed that the delay in the issuance of citation was at his direction. The suit was filed when the petition was filed with the clerk. The statute imposes upon the clerk the duty of issuing the citation promptly. Tribby v. Wokee, 74 Tex. 142, 11 S. W. 1089; R. S. 1925, art. 2021. For the purpose of deciding the question here presented, therefore, it is to be assumed that jurisdiction over the controversy first attached to the district court of Coleman county.

The...

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32 practice notes
  • Reed v. Reed, No. A-6442
    • United States
    • Supreme Court of Texas
    • January 8, 1958
    ...the necessary intention as including the intent 'to obtain service'. See also Powers Page 630 v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951; Long v. Long, Tex.Civ.App., 269 S.W. 207, 210; Southwestern Life Insurance Company v. Sanguinet, Tex.Civ.App., 231 S.W.2d 727. In the two latter ca......
  • Davis v. Gillen, No. 4658
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 3, 1949
    ...S.W.2d 1031. The decisions of the Commission of Appeals in Hill v. Brown, 237 S.W. 252, and in Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951, which defendants cite, do not qualify any relevant holding made in Houston Oil Co. v. Village Mills Co., and are not in point on any phase ......
  • Landon v. Jean-Paul Budinger, Inc., JEAN-PAUL
    • United States
    • Court of Appeals of Texas
    • February 11, 1987
    ...Dallas General Drivers v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873 (1956); Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951 (Com.App.1935); Haden Employees' Ass'n v. Lovett, 122 S.W.2d 230 (Tex.Civ.App.1938, writ ref'd). See also, Weisel Enterprises, Inc. v. Curry, 718 S.W......
  • Reed v. Reed, No. 13190
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • April 17, 1957
    ...of the facts, whose findings, supported by the evidence, are binding on the appellate court. Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951; Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Long v. Long, Tex.Civ.App., Page 463 269 S.W. 207; 1 Tex.Jur. 102, Sec. 72. See also, Owen v. C......
  • Request a trial to view additional results
32 cases
  • Reed v. Reed, No. A-6442
    • United States
    • Supreme Court of Texas
    • January 8, 1958
    ...the necessary intention as including the intent 'to obtain service'. See also Powers Page 630 v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951; Long v. Long, Tex.Civ.App., 269 S.W. 207, 210; Southwestern Life Insurance Company v. Sanguinet, Tex.Civ.App., 231 S.W.2d 727. In the two latter ca......
  • Davis v. Gillen, No. 4658
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • November 3, 1949
    ...S.W.2d 1031. The decisions of the Commission of Appeals in Hill v. Brown, 237 S.W. 252, and in Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951, which defendants cite, do not qualify any relevant holding made in Houston Oil Co. v. Village Mills Co., and are not in point on any phase ......
  • Landon v. Jean-Paul Budinger, Inc., JEAN-PAUL
    • United States
    • Court of Appeals of Texas
    • February 11, 1987
    ...Dallas General Drivers v. Wamix, Inc. of Dallas, 156 Tex. 408, 295 S.W.2d 873 (1956); Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951 (Com.App.1935); Haden Employees' Ass'n v. Lovett, 122 S.W.2d 230 (Tex.Civ.App.1938, writ ref'd). See also, Weisel Enterprises, Inc. v. Curry, 718 S.W......
  • Reed v. Reed, No. 13190
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • April 17, 1957
    ...of the facts, whose findings, supported by the evidence, are binding on the appellate court. Powers v. Temple Trust Co., 124 Tex. 440, 78 S.W.2d 951; Ricker v. Shoemaker, 81 Tex. 22, 16 S.W. 645; Long v. Long, Tex.Civ.App., Page 463 269 S.W. 207; 1 Tex.Jur. 102, Sec. 72. See also, Owen v. C......
  • Request a trial to view additional results

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