J. V. Foster and others v. J. L. Shephard, 33 Tex. 687

Ogden, J. The plaintiffs in error in this cause commenced suit against defendant in error, in the district court, by injunction. Defendant filed a motion to dismiss the injunction for want of equity in the petition, which motion was sustained by the court.

The injunction was dissolved, and a judgment was rendered against all the plaintiffs and their securities on the injunction bond, for the amount of the original judgment, the collection of which was sought to be resti-ained, and execution ordered for the judgment and costs, without requiring the plaintiff in the original judgment to execute a refunding bond as required by law. We think this such an error as will require a reversal of the judgment in this case.

Article 3937, Paschal’s Digest, provides substantially that on the dissolution of an injunction restraining the collection of money, if the petition be continued over for trial or hearing as an original suit, it shall be the duty of the court to require of the defendant or defendants' bond and security in double the amount enjoined, conditioned that he or they will refund to the complainants the amount of money, interest and costs, which may be collected from them in the suit or proceeding enjoined, in the event of such injunction being made perpetual on a final hearing.

We are of the opinion that though defendant in error was not attempting to collect money directly fr.pm .the plaintiffs, yet he was attempting to collect money claimed by them as theirs of right, and therefore this- ease would properly come under the rule of the statute; and that the court erred in not requiring a refunding bond as therein required, for all moneys collected on the debt or judgment enjoined in this suit. The judgment of which plaintiffs in error now complain was rendered against the heirs of Sanders for a debt due from J. B. Foster to the partnership firm of Sanders & Shephard.

This we also think was erroneous. Had J. B. Foster been the only party suing out the injunction, in his individual right to restrain the collection of a debt due from him to Sanders & Shephard, then the judgment against him and his sureties on the injunction bond would have been legitimate and proper. But in the case at bar, he was not an interested party at all, and the judgment was rendered against strangers to the original debt. This we think in conflict with the decision of this court in the case of Carlin v. Hudson, 12 Texas, 208, and contrary to justice and equity.

In the case cited Justice Wheeler says, “it was competent for the plaintiff in execution to have pleaded to the petition for injunction, the damages sustained by reason of the improper suing out of the injunction. * * * But they could only recover upon proof of the damages they have sustained by reason of the injunction.” This we think the true rule under the statute, and that the judgment of the district court in this cause, in rendering judgment against the heirs of Sanders for the debt they had enjoined was erroneous. For the reasons given this cause is reversed and remanded. Reversed and remanded.