Miller v. Berry, 13 Tex. 208

Wheeler, J. The appellant petitioned the Court and obtained an injunction, restraining the collection of a judgment. The defendant answered and moved to dissolve the injunction and dismiss the petition. The Court dissolved the injunction, but refused to dismiss the petition. At a subsequent Term the Court dismissed the case for the want of prosecution. This writ of error was prosecuted from the judgment dissolving the injunction; and before-the final disposition of 'the case in the District Court.

The Court ought to have dismissed the case on the motion of the defendant; for the petition is manifestly devoid of merits, and shows upon its face, that the petitioner was not entitled to an injunction, and had misconceived his remedy, if indeed he had sustained, or was likely to sustain any injury in consequence of the matters complained of. But the Court continued the case upon the petition and answer : and the judgment dissolving the injunction was not a final judgment in the case, from which a writ of error will lie. The writ of error must therefore be dismissed. Writ of error dismissed.

This opinion having been prepared by Wheeler, J., but left unread upon his being suddenly called from the sitting of the Court by sickness in his family, was read as the opinion of the Court by Hemphill, Ch. J., in the order in which it is printed.