Bullard v. White , 2 Wilson 216 ( 1884 )

Opinion by

Willson, J.

§ 286. lies adjudícala; injunction cannot be used as a mode of appeal. White, having a judgment against one Hardeman, caused an execution to be levied upon a bale of cotton which Bullard claimed belonged to him. A trial of the right of .property to the cotton was had in justice’s court, and the case went to the county court by appeal, where judgmbnt was rendered against the claimant, Bullard, and the sureties upon his claim bond, for the value of the cotton, $34, and for costs. Bullard and his sureties then brought this suit by injunction to restrain the collection of said judgment, upon the ground that, within ten days after the rendition thereof, Bullard had returned said bale of cotton in as good condition as he had received it, and had paid all damages and costs. Upon a hearing of the case in the county court, the injunction wras dissolved and the suit dismissed. Upon the trial, Bullard offered evidence to prove that the bale of cotton was his property at the time it was levied upon. Held, this evidence was properly rejected. The title to the cotton had been determined in the suit for the trial of the right of property, and was res adjudícala. The writ of injunction cannot be used as a mode of appeal. JW. & W. Gon. Eep. § 1209.] And the fact that this court would not have entertained jurisdiction of an appeal from said judgment, because the amount thereof, nor the amount in controversy, does not exceed $100, does not authorize a reopening of the matters adjudicated in the former suit.

April 19, 1884.

§ 287. Return of property by claimant; requisites of. The trial judge did not err in concluding that there, had been no such compliance with article 4845 of the Revised Statutes as would operate to discharge the judgment against appellants upon the claimant’s bond. Without considering the question as to whether or not the evidence proves an actual return of the cotton, it is sufficient to say that the statute requires not only a return of the property within the ten days, and in as good condition as when it was received, but the claimant must also, -within said time, pay for the use of the same, and pay the damages and costs. It was proved that the claimant had paid the damages and costs, but it was not shown when, whether within the ten days allowed by law or after that time.

Affirmed.