Dillard v. Stringfellow Hume , 50 Tex. Civ. App. 410 ( 1908 )

This suit was brought to enjoin the sale under execution of real estate, and resulted in a judgment in favor of the defendants below dissolving the injunction and against the plaintiff and sureties on the injunction bond for the amount of the judgment sought to be collected by the execution sale. The execution was issued by a justice of the peace of another county and was regular and valid when the levy was made, but had to be returned before the property could be sold. Thevenditioni exponas was issued by the same justice of the peace, but without the attestation by the county clerk of his official capacity.

There is nothing in the record to show that any damage resulted from the effort to prevent the sale of the property by injunction beyond delay and expense.

The court did not err in dissolving the injunction, since the execution under which the levy was made was regular, although the venditioni exponas was not accompanied with a certificate that the justice of the peace issuing it was a duly qualified justice of the peace of the county and precinct from which it issued. The execution under which the levy was made was duly certified as required by article 1663, Sayles' Texas Civil Statutes, and the venditioni exponas showed on its face that it was issued by the same justice of the peace, which, we think, was a substantial compliance with the statute.

The court, however, erred in rendering judgment against the sureties on the injunction bond for the amount sought to be collected by execution, without pleading and proof that the temporary injunction had caused any such damage. We know of no authority for such a judgment.

The judgment on the injunction bond is therefore reversed and here rendered in favor of plaintiffs in error, with the costs of appeal taxed against the defendants in error, but in other respects the judgment will be affirmed.

Reformed and affirmed.

Writ of error refused.