Robertson v. Schneider & Davis , 1 Tex. Civ. App. 408 ( 1892 )

This writ of error was prosecuted by W. Y. Robertson to the Court of Appeals from a judgment rendered in the County Court of Hill County, against Tom Sanders as principal and said Robertson and another as sureties on an injunction bond. On May 9, 1891, the judgment was affirmed by an oral opinion of the Court of Appeals, and a rehearing was granted.

Defendants in error, Schneider Davis, in 1884, brought an attachment suit in Johnson County against Hudspeth Co., in which they caused to be seized under a writ of attachment the property of said Hudspeth Co. in Johnson County, and also certain alleged property of said Tom Sanders, in Hill County. Sanders, after an ineffectual attempt, by a proceeding under the statute for the trial of the rights of property, to wrest the Hill County property from the attachment levied thereon, in the spring of 1885 obtained a writ of injunction, with plaintiff in error as one of his sureties on the injunction bond, by which injunction writ the judgment rendered against him in the suit for the trial of the rights of property in the sum of three hundred and odd dollars was enjoined. After this injunction was obtained, defendants in error recovered judgment in their attachment suit in Johnson County against Hudspeth Co. for several hundred dollars, to which was applied a credit — resulting from the sale of the property attached in that county — which reduced the amount due on that judgment to about $250. Thereafter, on the 17th day of March, 1887, a judgment was rendered, from which this writ of error is prosecuted, dissolving said injunction, and against said Tom Sanders and his sureties on the injunction bond, W. Y. Robertson and E. V. Taylor, in the sum of $252.52, the amount remaining unpaid on the Johnson County judgment. As a ground for this recovery, Schneider Davis alleged in their answer the amount due them upon the Johnson County judgment, without alleging any damage or injury resulting from the granting of the injunction.

The record contains no statement of facts, although the trial seems to have been upon both pleading and proof. It is perfectly clear, however, under the well settled rule adopted by our Supreme Court, that the judgment is without support in the pleadings, and must therefore be reversed. Reasons for this conclusion may be found in the following cases, to-wit: Railway v. White, 57 Tex. 130; Avery Son v. Stewart,60 Tex. 154; Ferguson v. Herring, 49 Tex. 130 [49 Tex. 130]; Fernandez v. Casey, 77 Tex. 452.

The judgment will therefore be reversed and the cause remanded.

Reversed and remanded.