Benavides v. Thomas

Court of Appeals of Texas

Benavides v. Thomas

224 S.W. 205, 1920 Tex. App. LEXIS 851

CourtCourt of Appeals of Texas

DecidedJune 30, 1920

DocketNo. 75651.

StatusPublished

This text of 224 S.W. 205 (Benavides v. Thomas) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Benavides v. Thomas, 224 S.W. 205, 1920 Tex. App. LEXIS 851 (Tex. Ct. App. 1920).

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Opinion

GRAVES, J.

Concluding that it is without the necessary jurisdiction to grant the injunction herein prayed for, the restraining order, entered on June 1, 1920, by this court pending a hearing on the matter, is vacated, and the application is dismissed.

It may be, as the applicants contend, that the sale of the property involved against them both on October 7, 1919, under process from the district court, for a greater sum than this court has since held it to have been chargeable with as against Perfine Benavides, has been rendered void, but, if so, that fact alone would not confer jurisdiction here to now stay the execution of the trial court’s judgment; the cause did not reach this court at all until the 4th day of November, 1919, nearly a month after the sale complained of had taken place, and then only upon a mere cost bond. By the express provisions of article 2100 of the Revised Statutes that bond did not have the effect of suspending the lower court’s judgment, but left execution to issue thereon as if no appeal had been taken. That appeal, while never in the manner so presented involving either the title to the property or control over the carrying out of the judgment below, has been disposed of by this court, and a rehearing thereof has been refused. There is accordingly no jurisdiction left in this court to be enforced, and its only source of authority for the granting of injunctions is therefore wanting. Railway Co. v. Hornberger, 141 S. W. (1) at page 312, and Id., 106 Tex. 104, 157 S. W. 744.

Application dismissed.

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GRAVES, J.

Concluding that it is without the necessary jurisdiction to grant the injunction herein prayed for, the restraining order, entered on June 1, 1920, by this court pending a hearing on the matter, is vacated, and the application is dismissed.

It may be, as the applicants contend, that the sale of the property involved against them both on October 7, 1919, under process from the district court, for a greater sum than this court has since held it to have been chargeable with as against Perfine Benavides, has been rendered void, but, if so, that fact alone would not confer jurisdiction here to now stay the execution of the trial court’s judgment; the cause did not reach this court at all until the 4th day of November, 1919, nearly a month after the sale complained of had taken place, and then only upon a mere cost bond. By the express provisions of article 2100 of the Revised Statutes that bond did not have the effect of suspending the lower court’s judgment, but left execution to issue thereon as if no appeal had been taken. That appeal, while never in the manner so presented involving either the title to the property or control over the carrying out of the judgment below, has been disposed of by this court, and a rehearing thereof has been refused. There is accordingly no jurisdiction left in this court to be enforced, and its only source of authority for the granting of injunctions is therefore wanting. Railway Co. v. Hornberger, 141 S. W. (1) at page 312, and Id., 106 Tex. 104, 157 S. W. 744.

Application dismissed.

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224 S.W. 205, 1920 Tex. App. LEXIS 851, Counsel Stack Legal Research, https://law.counselstack.com/opinion/benavides-v-thomas-texapp-1920.

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