Smith v. Wilson
| Decision Date | 20 January 1898 |
| Parties | SMITH et al. v. WILSON.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
Suit by J. E. Smith against H. Wilson for damages and an injunction. From a judgment in favor of defendant on a plea of reconvention against plaintiff and the sureties on the injunction bond, they bring error. Affirmed.
Adams & Adams, for plaintiffs in error. Nunn & Nunn, for defendant in error.
Plaintiff in error J. E. Smith brought suit in the district court of Houston county against the defendant in error, H. Wilson, for an injunction and for damages. Plaintiff alleged that he was the duly elected and qualified public weigher of Houston county, having his office at Crockett, and was the only public weigher for said county; that the city of Crockett received less than 25,000 bales of cotton annually for sale and shipment; that defendant had established an office near the railroad depot at Crockett, with platform and fixtures for weighing cotton, and since plaintiff's qualification, and though not a public weigher or deputy, or authorized by law, had weighed about 5,000 bales of cotton before and since the institution of this suit, in violation of plaintiff's right, which he alleged to inure and to be exclusive in him, to weigh cotton in said town, by reason of the fact that he was the public weigher, and the defendant was not; that the defendant solicited parties to weigh their cotton, and charged therefor, and gave samples and receipts therefor, and delivered such cotton so weighed by him to commission merchants, brokers, and merchants, without any written orders from the owners of the cotton. Plaintiff presented his petition to the district judge, who granted a preliminary writ of injunction "enjoining the defendant from weighing cotton, as prayed for, where the same was not done by written instructions of the owner, authorizing his factor, commission merchant, or agent to have his cotton weighed by defendant," which was issued and served upon the defendant. The defendant answered the petition, and, after general denial of the plaintiff's cause of action, alleged that defendant kept a warehouse, and had received cotton for shipment and storage as other merchandise and farm products, and that he also, as a part of the business, ran a dray or wagon, hauling freight to and from the depot, and otherwise conducted a warehouse, and did a forwarding and receiving business for the accommodation of the public; that he had weighed cotton and other produce and merchandise only in the course of his business, and by the request of the owners thereof; that he had handled no cotton or other produce except for those desiring him to do so, and when brought to his warehouse for and by those having an interest in the same. Therefore, he said, he had violated no law, nor had he in any way interfered with complainant or his business. He further alleged that the injunction had been wrongfully sued out, whereby he was restrained from weighing cotton, and in consequence he was required to obtain from the owners of all cotton who desired him to weigh the same their written request therefor; thus impeding him in his business, and subjecting him to loss of time and injury, to his damage $1,000, for the recovery of which he pleaded in reconvention. After defendant's plea in reconvention had been filed, the plaintiff attempted to dismiss his suit, and the judgment of dismissal was entered by the court; but afterwards, at the same term, the defendant filed a motion to reinstate the case because of his plea in reconvention, and the motion was granted. There was a trial by the court without a jury, and judgment was rendered in favor of the defendant on his plea in reconvention against the plaintiff and the sureties on his injunction bond, except S. D. Thompson, for the sum of $300, the full amount of the bond and costs. It does not appear from the record that any order was made by the court dismissing Thompson from the suit, or otherwise disposing of him. This writ of error has been prosecuted by the plaintiff and the sureties upon his injunction bond, except Thompson.
There is no statement of facts, and only one error has been assigned for a reversal of the judgment, which is as follows: "The court erred in rendering any judgment for...
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