Cole v. Varner

246 S.W. 410

• Court: Court of Appeals of Texas
• Decided: November 25, 1922
• Docket: No. 10152.
• Status: Published

Opinion

CONNER, C. J.

We are of opinion that the order appealed from in this case must be set aside for several reasons apparent on the face of the record.

In the first place, the petition for the temporary writ is not verified. This was essential. See Rev. Stats, art. 4649; Wright v. Wright, 3 Tex. 168; Pullen v. Baker, 41 Tex. 419; Lee v. Broocks, 54 Tex. Civ. App. 220, 118 S. W. 165; Moss v Whitson (Tex. Civ. App.) 130 S. W. 1034; Clarey v. Hurst (Tex. Civ. App.) 136 S. W. 840.

It also appears that the temporary writ of injunction was authorized and issued without the requirement of a bond and that no bond in fact yvas given. This also was a prerequisite for the issuance of the writ. Rev. Stats, art. 4654; Morris v. Parry, 218 Mo. 701, 118 S. W. 430; Boykin v. Patterson (Tex. Civ. App.) 214 S. W. 611; Searcy v. Commonwealth (Ky.) 222 S. W 513.

Again, the petition seeks to set aside the judgment that on its face recites service, and no defense to the notes and mortgage upon which the judgment is predicated is averred, nor is any reason assigned why, if the judgment was defective or erroneous for the causes alleged, the petitioner could not have obtained relief by a seasonable effort before the trial court to obtain a new trial, or, if refused, then seek relief by appeal or by writ of error. While it is true that the plaintiff might institute a separate suit for damages because of a wrongful and malicious issuance of a writ of attachment, yet, in so far as the petition sought to abrogate the judgment entirely and prevent its abstracting and prevent the issuance of further executions, it was undoubtedly necessary for the petitioner to not only allege that he had a just defense against the cause of action upon which the judgment was predicated, but also to show diligence in the effort to correct the matters of which he complains in the trial court. Sheppard v. Avery (Tex. Civ. App.) 32 S. W. 791; Drinkard v. Jenkins, (Tex. Civ. App.) 207 S. W. 354; Wichita County Lumber Co. v. Maer (Tex. Civ. App.) 235 S. W. 990.

For the reasons assigned, the order of the court below is set aside, and the temporary writ of injunction vacated and adjudged to' be of no effect.