Scruggs v. McCart

• Court: Texas Supreme Court
• Writing for the Court: Leddy
• Citation: Scruggs v. McCart, 32 S.W.2d 823, 119 Tex. 464 (Tex. 1930)
• Decision Date: 26 November 1930
• Docket Number: Motion No. 9379; 1182-5511.
• Parties: SCRUGGS et al. v. McCART et al.

Page 823

32 S.W.2d 823

SCRUGGS et al. v. McCART et al.

Motion No. 9379; 1182-5511.

Commission of Appeals of Texas, Section B.

November 26, 1930.

Application by Gross R. Scruggs and others for leave to file petition for injunction, prohibition, and mandamus.

Motion denied.

Burgess, Burgess, Chrestman & Brundidge, H. A. Bateman, and L. E. Elliott, all of Dallas, for relators.

LEDDY, J.

The city of Dallas, suing for the benefit of Texas Bitulithic Company, recovered judgment in the district court of Dallas county on a paving assessment for $1,109.71 and for the foreclosure of a special assessment lien on certain real estate situated in the city of Dallas. In that case Mrs. Lizzie McCart was a defendant, she having acquired the property against which the paving lien existed from Gross R. Scruggs under a general warranty deed after the creation of the lien. Judgment was rendered against her in favor of the plaintiff for foreclosure of the assessment lien against the property. Upon her cross-action judgment for a like amount was rendered in her favor against Gross R. Scruggs on his general warranty against incumbrances.

Upon appeal to the Court of Civil Appeals 16 S.W.(2d) 973, the judgment of the trial court was reversed and remanded, but the Supreme Court granted a writ of error, and upon hearing the judgment of the Court of Civil Appeals was reversed and the judgment of the trial court affirmed upon the recommendation of this section of the commission. 26 S.W.(2d) 173.

After the affirmance by the Supreme Court, Gross R. Scruggs filed a motion for rehearing, in which he complained that the judgment as rendered did not protect him against a double recovery, in that Mrs. McCart was entitled to collect the amount awarded her against him before discharging the paving lien, and, if she failed to pay off the judgment in favor of the paving company, he might be subjected to a recovery by a subsequent purchaser of the property under the general warranty deed by which he had parted with his title to the property. This motion was granted, and the judgment was modified so as to provide that execution should not issue in favor of Mrs. McCart upon her judgment against Scruggs until she had paid off and satisfied of record the judgment lien in favor of the paving company. 28 S.W.(2d) 537.

We are now presented with an application by Gross R. Scruggs, and the sureties on his supersedeas bond, for leave to file what is styled a petition for injunction, prohibiti...