Gothard v. Reiley , 14 Tex. 461 ( 1855 )

Wheeler, J.

The petition was rightly adjudged insufficient upon demurrer, for the reason that it does not disclose any injury as likely to occur to the plaintiff by reason of the proceeding sought to be enjoined. It is averred that the property had been seized as the property of the plaintiff and his co-defendant in the judgment; and the plaintiff protests against the sale of the property of his co-defendant therein, without administration, and a revival of the judgment. But there is no averment that this party has any right or interest in the property, which, according to his representation, is about to be sold in satisfaction of his debt. It is scarcely necessary to say, that the averments in a petition, of the character of the present especially, which seeks to enjoin the execution of a judgment upon merely technical grounds, and without disclosing merits, must be taken most strongly against the party making them. And the Court cannot supply, by intendment, so material an averment, as that the property, of which he seeks to enjoin the sale, is the property of the plaintiff. It must be taken, therefore, upon the averments of the petition, that the plaintiff was not the owner or interested in the property; since he has not averred such ownership or interest in himself. And it is evident, that he can sustain no injury by a sale of the property of his co-defendant or any one else in discharge of his indebtedness.

For the reason, therefore, that the plaintiff has shown no injury as likely to result to him, by reason of the proceeding complained of; and for the further reason that the petition manifestly discloses no merits, or ground, calling for the interposition of the equitable powers of the Court, for the relief of the plaintiff, the petition was rightly adjudged insufficient. The Court, therefore, did not err in dissolving the injunction, dismissing the petition, and giving judgment for the defendant in the injunction, upon the injunction bond. The judgment is affirmed.

Judgment affirmed.