Gault v. Goldthwaite

Walker, J. Article 3935, Paschal’s Digest, reads as follows : “ Upon the dissolution of an injunction, either in whole or in part, when the collection of money has been enjoined, if the court be satisfied that the injunction was obtained only for delay, damages thereon shall be assessed by the court at ten per cent, on the amount released by dissolution of the injunction, exclusive óf costs; and in all other cases the damages shall be assessed by a jury sworn for that purpose; if neither party require a jury, the damages may be assessed by the court.” We think the law, in its just remedial contemplation, covers the case at bar. William M. Lubbock sold certain land to J. M. Calloway. There was a deferred payment of $3587 50, to secure the payment of which Calloway executed a deed of trust to George Goldthwaite as trustee. The money was due, and the trustee was about to execute the trust, when Cyrus Gault, Jr., sued out an injunction before the Hon. George R. Scott. The injunction was granted at chambers on the twenty-fourth of June, 1869. The petition was filed by the clerk July 5,1869; the writ was issued and served upon the trustee the same day. The judge who granted the injunction dissolved it at chambers on the sixteenth day of October, 1869, and on the thirteenth day of December following, the trustee sold the property. At the October term of the court, 1870, judgment was rendered against the appellant Gault for $358 50, being ten per cent damages on the amount Calloway owed Lubbock. Gault moved for new trial, Which motion was overruled, and he brings his appeal to this court. The only question for our consideration is whether this case comes within the statute. If the injunction restrained the collection of money improperly, then the district court was undoubtedly bound to award the reme [110] dy; and we think there can be nothing more clear, and it matters not whether the injunction be granted upon the prayer of the debtor, or upon that of one who impertinently and officiously intermeddles where his interests -do not require it. This, we think, was the case with Gault; whether he wished to help his friend Calloway to delay payment of his debt, or whether, through ignorance, he acted in his own wrong, is totally immaterial here. Article 3935 applies to eases where a trustee is enjoined from collecting money secured by a trust deed from selling under the trust. (See Gibson v. O’Connell, 30 Texas, 684; also the case of Bedwell v. Thompson, 25 Texas Sup., 247.) In the case of Carlin v. Hudson, 12 Texas R., 204, the court say the statute authorizing the court to award damages for delay on the dissolution of an injunction has reference to injunctions to restrain the collection of money, obtained by the judgment debtor or some one who is a party to the judgment. We submit that the'article in the statute is not subject to' this restrictive language, and with all deference, we submit that there is a more sufficient reason for punishing a mere intermeddler, by awarding damages against him, than there would be in the case of the debtor himself, or any one who is party to the record. The case of Bedwell v. Thompson cannot be said to be a case of injunction to restrain the collection of money; the prayer in that case was for the recision of a contract, the repayment of money advanced, and the perpetual injunction of deferred payments. In Hammonds v. Belcher, (10 Texas, 271,) the injunction was originally granted to restrain the use of a ferry on the Sabine river. They were not cases which can l)e regarded as authority in the case at bar. In the case of Falls v. Radcliff, 10 Texas, 293, the court say that much discretion must be allowed to the district court in assessing or refusing damages under this statute; and its action shall not be disturbed except for manifest error or mistake in law. [111] There was, perhaps, no necessity for a jury in this .case, but the judge, nevertheless, had a right to direct the finding of any fact which he thought pertinent to the case. The facts being ascertained, the amount of damages was fixed by law. For the reasons given, the judgment of the district court is affirmed. Affirmed.