G. Seligson & Co. v. Collins

64 Tex. 314

• Court: Texas Supreme Court
• Decided: July 1, 1885
• Docket: Case No. 5513
• Status: Published

Opinion

Watts, J. Com. App.

Appellee was not concluded as to his homestead rights by the decree of the county court of Galveston county foreclosing the attachment lien upon the land. No such issue was made or adjudicated in that case. Willis v. Matthews, 46 Tex., 483.

Here the injunction restrained a sale of the particular property described in the order of sale. This order of sale commanded the sheriff of Coryell county to sell the specific property; hence the effect of the injunction was to suspend the operation of the process until such time as the questions raised by the injunction suit might be determined. In this respect there is a difference between an order of sale and an ordinary execution. The one commands the sale of particular property and does not become operative as an ordinary execution until the sale is made, and not then unless there is a balance remaining unpaid upon the judgment; whereas enjoining a sale under an execution, where the validity or regularity of the writ is not questioned, does not suspend the operation of the process, but the sheriff may, by virtue of the writ, levy upon and sell other property of the defendant therein, to satisfy the judgment.

Here the proceeding by injunction not only stayed or suspended the process, but also questioned its validity and regularity. In such case the statute is imperative — the writ of injunction must be returned to the court from which the order of sale issued. R. S., art. 2880; Hendrick v. Cannon, 2 Tex., 259; Winnie v. Grayson, 3 Tex., 429; Cook v. Baldridge, 39 Tex., 250.

Undoubtedly the district court of Coryell county had no jurisdiction, and erred in overruling the appellants’ exceptions, etc.

Our conclusion is that the judgment ought to be reversed and the cause dismissed.

Reversed and dismissed.

[Opinion approved June 2, 1885.]