I feel unable to concur in the conclusion that appellee's petition discloses sufficient grounds for the injunction as upheld. In so far as the right to an injunction can be said to be supported by allegations of a void judgment, the injunction should fall as being merely incidental to the main controversy, which has been determined by us all adversely to appellees. As showing a right independent of the controversy between J. D. Robinson, the husband, and the appellant, Slayden-Kirksey Woolen Mill, I think the petition insufficient, in that neither Mrs. Robinson, nor her husband in her right, shows any cause for intervention in the suit and thus to inject the independent issue of whether the personal property levied upon is the separate property of the wife. See Whitman v. Willis, 51 Tex. 429; Dorroh v. Bailey, 125 S.W. 620. Moreover, in other respects the petition seems wholly insufficient. Aside from the allegations relied upon as showing the invalidity of the judgment against J. D. Robinson and a just defense to the cause of action asserted by the Slayden-Kirksey Woolen Mill, the only relevant averments are that J. D. Robinson had no knowledge of the proceedings subsequent to the order of transfer by the county court of McLennan county "until execution had been issued on said judgment and notice of a levy of the same served upon the wife of defendant, Mrs. M. F. Robinson," and that "the said execution issued out of the county court of Tarrant county, Tex., for civil cases upon said judgment has been levied by the sheriff of Tarrant county, Tex., upon a one-half interest in the stock of goods of Robinson Co., at Grapevine, Tex.; the said property so levied upon being the separate and individual property of the plaintiff, Mrs. M. F. Robinson. Plaintiffs allege that unless this court issue and order its writ enjoining the said sale of said property so levied upon by the sheriff of Tarrant county, Tex., said property will be sold thereunder to plaintiffs' injury." The prayer is as follows: "Wherefore plaintiff J. D. Robinson prays the court that the defendant be cited to appear and answer therein; that the judgment heretofore rendered against him in the county court of Tarrant county, Tex., for civil cases, be set aside, and a new trial granted him; that said execution heretofore issued be ordered recalled and returned into court; that the said sheriff be restrained from selling the property levied upon under said execution; for costs of suit; and for general relief. And the plaintiff Mrs. M. F. Robinson, in addition to the relief asked by said J. D. Robinson, and adopting same for herself, asks that said sheriff be restrained by order of this court from selling said property under said execution, and for general relief."
I submit that the allegations so quoted fail to exclude the necessity of a suit at law as for a conversion, or a resort to the legal remedy of a trial of the right to the property levied upon by filing affidavit and claimant's bond as provided by Revised Statutes, art. 5286, a remedy at once speedy and efficacious and designed for causes such as this. See Whitman v. Willis, 51 Tex. 421; Lang v. Dougherty, 74 Tex. 226, 12 S.W. 29; Ferguson v. Herring, 49 Tex. 126. In the case last cited it was expressly held that a claimant of property levied upon, as here, by an execution issued against another, cannot invoke relief by injunction. But it is supposed that our statute authorizing the issuance of injunctions as amended by an act approved April 22, 1909 (see General Laws 1909, 1st Called Sess. p. 354), alters the rule, and the majority rely upon the case of Sumner v. Crawford, 91 Tex. 129, 41 S.W. 994, as favoring this supposition. The act referred to, so far as pertinent, is as follows: "Section 1. That article 2989 of the Revised Civil Statutes of Texas be amended so as to read as follows: Article 2989. Judges of the district and county courts shall, either in term time or vacation, hear and determine all applications and may grant writs of injunctions returnable to said courts in the following cases: (1) Where it shall appear that the party applying for such writ is entitled to the relief demanded and such relief, or any part thereof requires the restraint of some act prejudicial to the applicant. (2) Where, pending litigation, it shall be made to appear that a party doing some act respecting the subject of litigation, or threatens, or is about to do some act, or is procuring or suffering the same to be done in violation of the rights of the applicant, which act would tend to render judgment ineffectual. (3) In all cases where the applicant for such writ may show himself entitled thereto under the principles of equity, and as provided by statutes in all other acts of this state, providing for the granting of injunctions, or where a cloud would be put on the title of real estate being sold under an execution against a person, *Page 298 partnership or corporation, having no interest in such real estate subject to the execution at the time of the sale, or irreparable injury to real estate or personal property is threatened, irrespective of any legal remedy at law."
It is to be observed that, to authorize the issuance of the writ of injunction under the paragraphs quoted, it must appear that such relief "requires the restraint of some act prejudicial to the applicant"; or that the act complained of would tender to render judgment "ineffectual"; or where "irreparable injury" to real estate or personal property is threatened. I am unable to see in what way Mrs. Robinson's case for injunction is brought within either of the classes of cases so provided for by the statute. The sole facts alleged are that the property is her separate property, that it has been levied upon, and that it will be sold. That such sale will be to her injury is a mere conclusion. If the levy was by an actual seizure of the property by the officer, but which is not distinctly alleged, a plain legal remedy exists that will afford appellees as full and speedy relief as the remedy of injunction, and at the same time give opportunity to appellants to exercise the right of jury trial and other remedies not ordinarily available in injunction suits. If the levy was by mere notice thereof as provided in Revised Statutes, art. 2352, as is to be implied from the petition, then neither Mrs. Robinson's title or possession has been disturbed; she being no party to the writ. If it be said that the threatened sale would cloud her title, the answer is that the statute by implication clearly excludes such ground in cases of personal property. As before indicated, to authorize the injunction irrespective of legal remedies, the threatened injury to real estate or personal property must be imminent. See statute quoted and Heath v. First Nat. Bank, 32 S.W. 779; Biggs v. Leffingwell,132 S.W. 902, and authorities therein cited. I do not understand the case of Sumner v. Crawford, cited by the majority on the question under consideration, as in conflict with the views above expressed. The question in that case, as stated by the court, was: "Can a trustee in possession of a stock of goods, conveyed to him by a firm to be sold to raise funds to pay certain partnership and individual debts of such firm and its members, by injunction compel the restoration of certain staple goods of such stock seized and taken from his possession by virtue of an execution against one of the partners, upon a showing by such trustees that, by reason of the taking of such goods, the remainder of the stock would be greatly depreciated in value and the trust estate thereby greatly damaged?" This was the question decided. No such case here appears. It is not shown that actual possession was taken by the officer, or, if so, that the part taken was necessary or beneficial to a successful or profitable disposition of the remainder of the goods. In brief, aside from some of the general language used by the able judge who wrote the opinion, it was merely held, in Sumner v. Crawford, that the legal remedy was not adequate and efficient for the relief the claimant in that case showed himself entitled to. It seems to me that that case should not be extended beyond its own facts so as to include the case here made, for it could hardly have been contemplated, in the absence of legislative repeal, to thereby render the statute providing for a trial of the right to property wholly useless, or to unsettle the long-existing and well-settled principles and practice relating to the remedy of injunction.
On the whole I think that no cause for the writ of injunction has been shown herein, and that the order therefore should be vacated in toto.