Sumner v. Crawford

• Decision Date: 20 March 1897
• Citation: 41 S.W. 825
• Parties: SUMNER v. CRAWFORD et al.
• Court: Texas Court of Appeals

41 S.W. 825

SUMNER v. CRAWFORD et al.

Court of Civil Appeals of Texas.

March 20, 1897.

Appeal from district court, Hill county; J. M. Hall, Judge.

Action by W. B. Crawford against H. B. Sumner and others. From a judgment in favor of plaintiff, defendant Sumner appeals. Affirmed.

McKinnon & Carlton, for appellant. Poindexter & Padleford, for appellees.

RAINEY, J.

This is an injunction suit brought by W. B. Crawford, against H. B. Sumner, appellant, and Tom Bell, sheriff of Hill county, Tex., and J. A. Rodgers, his deputy, to restrain the sale of certain goods seized and taken into the possession of said Rodgers, as deputy sheriff, by virtue of an execution on a judgment recovered by said Sumner against W. F. Cooper. Upon the trial, judgment was rendered for the plaintiff perpetuating said injunction, from which Sumner appeals. The cause was tried before the court, without a jury, and the conclusions of fact as found by the court below are here adopted as the conclusions of fact of this court.

Conclusions of Law.

1. The taking possession of the goods by the deputy sheriff was not warranted by law. Therefore, there was no valid levy of the writ of attachment. Under the statute, in order to make a valid levy on personal property belonging to a partnership, to pay the debt of an individual partner, or on personal property in the hands of a trustee, it is necessary that notice of such levy must be given to one or more of the partners, or to the clerk of the partnership, or to the trustee, as the case may be. Middlebrook v. Zapp, 79 Tex. 321, 15 S. W. 258; Currie v. Stuart (Tex. Civ. App.) 26 S. W. 147; Gunter v. Cobb, 82 Tex. 598, 17 S. W. 848; Coates v. Caldwell, 71 Tex. 21, 8 S. W. 922; Railway Co. v. Lewis, 81 Tex. 1, 16 S. W. 647; Pittman v. Grocery Co. (decided by this court, at this term) 39 S. W. 1108.

2. Under the facts of this case, the taking of the property was a trespass, and would work irreparable injury to the plaintiff in his trust capacity, and he was entitled to his writ of injunction. We are of opinion that the plaintiff had no plain, adequate, and complete remedy at law. The case of Ferguson v. Herring, 49 Tex. 129, relied on by appellant, holds that a claimant of property levied on under execution cannot invoke relief by injunction to prevent its sale, unless some good reason be alleged in the petition why he did not resort to his legal remedy by affidavit and claimant's bond to try the right of property. We think the facts...