Gentry v. Lockett , 37 Tex. 503 ( 1873 )

Walker, J.

Lockett, the appellee, brought suit against John Fullerton by attachment, which was levied on one bale of cotton. The cotton was claimed by Thomas S. Fullerton, who resorted to the statutory trial of the right of property, having filed the necessary oath and bond, with the appellant as one of his securities. On the trial of the cause, the appellee obtained a judgment m jpersonam against John Fullerton, but nothing was done with the attachment.

At a subsequent term of the court, on trial of the right of property, judgment went against Thomas S. Fullerton for the bale of cotton, and against the appellant, as his surety, for ten dollars damages. There was no judgment against the appellant for the cotton, nor was it adjudged subject to the attachment - lien; nor was there-any judgment against the appellant requiring the cotton to be returned to the officer, nor for costs of suit. The sheriff, however, indorsed on the claim bond that Thomas S. Fullerton had failed to deliver the cotton to the appellee.

Two executions were sued out against Thomas S. Fullerton and the appellant; one for the value of the cotton, and the other for the damages and costs.

The appellant tendered the amount of the damages and prayed an injunction against the executions. A temporary injunction was allowed; but at the November term of the court, 1872, the injunction was dissolved, and from this judgment of the court an appeal is taken.

We are of opinion that the court erred in dissolving the injunction. There was no judgment against the appellant" other than the ten dollars damages. The attachment lien appears to have been abandoned, and the principle decided in the case of Cook v. Love, 33 Texas, 487, applies to this case. Without a judgment foreclosing the attachment lien, or a judgment on the return bond against the appellant, he was liable for nothing more than the amount of the judgment for damages rendered against him.

The judgment of the District Court will be reversed and the injunction perpetuated.

Reversed and rendered.