(dissenting).
I respectfully dissent. In my view there is no proper basis for reversing the judgment of the trial court which denied a temporary injunction to plaintiff George L. Long, appellant here.
This suit was brought by George L. Long and the Northeast National Bank, San Antonio, Texas, as plaintiffs, against *586Claudio Castaneda, Sheriff of Hidalgo County, Texas, and The First National Bank and Trust Company of Lincoln, Lincoln, Nebraska. The Northeast Bank has not joined in this appeal, and George L. Long will be referred to as the sole appellant.
The record reflects that on July 28, 1968 the Nebraska Bank recovered a judgment in the 92nd District Court of Hidalgo County, Texas, in the amount of $37,090.00, plus interest and costs, against Walter I. Black and wife, Vivian L. Black, and Walter I. and Vivian Black, Inc., jointly and severally.
The alias writ of execution on the judgment in favor of the Nebraska Bank was issued on October 19, 1970. On its face it was returnable in 90 days. Under Rule 621, T.R.C.P., execution on a judgment is returnable in thirty, sixty or ninety days as requested by the plaintiff, his agent or attorney. In this case the ninetieth day after issuance of the alias execution was January 17, 1971. The appellee Sheriff levied on the mobile home belonging to the Blacks on January 6, 1971 and posted notice of sale to be held on January 18, 1971. The instant suit was filed by plaintiffs on January IS, 1971 and on that date the trial court granted a temporary restraining order enjoining the appellee Sheriff from holding a Sheriff’s sale of the mobile home under the above-mentioned alias execution until a hearing upon appellant’s application for temporary injunction, which was set for January 21, 1971. The effect of the temporary restraining order of January 15, 1971 was to prevent the Sheriff’s sale on January 18, 1971. When the trial court heard the appellant’s application for temporary injunction on January 21, 1971, the Sheriff’s sale (under the notice posted for January 18, 1971) was three days past due and ninety-three days had expired from issuance of the alias execution on the judgment against the Blacks.
It is therefore apparent that on January 21, 1971, when the trial court herein denied a temporary injunction, there was not any valid or effective execution outstanding on the judgment against the Blacks, that the Sheriff’s notice of sale for January 18, 1971 (which date was 91 days after issuance of the alias execution) was also not valid nor effective, and that it was then impossible for the sale to be carried out in accordance with the alias execution and notice. It is well settled that a writ of execution, such as the one in this case, is of no force and effect after the time in which it is made returnable, and the right of the Sheriff or Constable to sell property under such writ ceases from the date the writ was returnable. See Chance v. Pace, 151 S.W. 843 (Tex.Civ.App., Galveston, 1912, n. w. h.); Tudor v. Orr, 179 S.W.2d 796 (Tex.Civ.App., Amarillo, 1944, n. w. h.) and cases cited in those decisions.
In the instant case, on January 21, 1971 it appeared that a Sheriff’s sale of the mobile home could not have been validly held on that date or thereafter unless and until another execution had been issued on the judgment and another notice of sale had been duly posted. The trial judge was entitled to consider such matters when he heard appellant’s application for temporary injunction on January 21, 1971. Under the circumstances shown to exist at that time the Sheriff could not have conducted a sale of the mobile home without the above-mentioned further actions being taken. The trial judge was not required to anticipate further events in connection with the controversy and clearly did not abuse his discretion in denying the temporary injunction.
Appellee’s motion for rehearing clearly sets out that the posted date of sale was after the return date of the alias execution on the above-mentioned judgment against the Blacks and if the sale had been conducted on January 18, 1971 it would have been void. Under these conditions I do not agree with the statement in the new majority opinion that “The Sheriff contends that he has the right to sell the trailer and by argument in his brief insists he *587will again attempt to sell the trailer before the case is tried on the merits” or the statement “However, since the Sheriff still insists apparently that he is entitled to sell the property by his resistance to the injunction in the trial court and here on appeal, a temporary injunction should issue by the trial court until the issue of ownership and damages are determined.” In my view there will not be any controversy concerning an attempted sale of the mobile home here in question unless and until another execution is issued on the judgment involved and another notice of sale is posted. I believe that the position of the ap-pellee Sheriff, particularly as shown by his motion for rehearing, is that a sale of the mobile home will not be attempted under the execution and notice which were before the court at the hearing of January 21, 1971.
Appellant Long’s sole position in this case is that he was the owner of the mobile home in question and his petition for injunction was based only upon that theory. In this case the action of the trial court must be sustained because appellant Long had a plain, adequate and complete remedy at law. Appellant’s petition and evidence wholly failed to negative the availability of the remedy of trial of right of property. See Rules 717-736, T.R.C.P.
Those rules provide in part:
“Whenever a writ of execution . is levied upon personal property, and such property, or any part thereof, shall be claimed by any person who is not a party to such writ, such person or his agent or attorney may make affidavit that such claim is made in good faith, and present such affidavit to the officer who made such levy (Rule 717); . he shall also execute and deliver to the officer ... his bond payable to the plaintiff in such writ, for an amount equal to double the value of the property so claimed Upon the approval of such bond and delivery of the property to the claimant, the same shall be deemed in custodia legis, and shall not be taken out of his possession by any other like writ or writs (Rule 718) ; . . . The officer receiving such oath and bond shall deliver the property so claimed to the person so claiming it (Rule 720); . the clerk of the court . shall docket the same . . . (Rule 725); . . . on the appearance day of such court, if both parties to the claim proceedings appear, then the court shall enter an order directing the making and joinder of issues by the parties (Rule 726); . . . trial shall be as nearly as may be the same as in other cases . . . (Rule 729); . If the property was taken from the possession of the claimant, the burden of proof shall be on the plaintiff . . . (Rule 730).”
The case of Hawkins v. Graham, 81 S.W.2d 754 (Tex.Civ.App., San Antonio, 1935, writ refused) is closely in point. There it appeared that a constable in Hi-dalgo County levied on an oil well drilling outfit and advertised the same for sale as the property of J. V. Hawkins, pursuant to an execution and order of sale issued by the district court of Webb County. E. A. Graham then filed suit to enjoin the threatened sale on the ground that he was the owner of the seized property. The trial court granted a temporary injunction prohibiting the sale and Hawkins appealed. The Court of Civil Appeals cited Article 7402 and 7403, R.C.S.1925, which now have been carried forward unchanged as Rules 717 and 718, T.R.C.P. The court, referring to the remedy of trial of right of property, then held in part as follows:
“It is perfectly obvious that by this remedy appellee would have been afforded every protection sought by him in this equitable proceeding, and, as appellee alleged no facts which would excuse him from pursuing that remedy, he was not entitled to the extraordinary writ prayed for and granted to him. West Texas *588Utilities Co. v. Farmers’ State Bank (Tex.Civ.App.) 68 S.W.2d 648.
The only ground upon which appellee sought to justify the resort to this equitable remedy was the allegation that appellant was insolvent and could not respond in damages. That being true, ap-pellee could procure nothing in this action but a recovery of the property, which, being already in the hands of the officer, was at once available to him in the statutory proceeding for the trial of the right of property.
The judgment is reversed, and the injunction dissolved.”
It conclusively appears in this case that appellant Long could have effectively protected his alleged ownership in the mobile home involved by utilizing the remedy of trial of right of property. Rules 717-736, T.R.C.P. Long did not need an injunction of the district court in order to protect his claimed right, and he would have been afforded all the protection to which he might have been entitled by pursuing the remedy provided by law. In this situation the action of the trial judge was clearly within his discretion and there was no abuse of it in this case.
There are additional reasons for holding that the trial court did not abuse its discretion in denying the temporary injunction sought by Long. The evidence offered by appellant left much to be desired in connection with his claim of ownership. It is undisputed that there was no attempt to comply with Art. 1436-1, Vernon’s Ann. Penal Code, the certificate of Title Act. The evidence in this case shows the mobile home to be registered with the Texas Highway Department in the names of Walter I. and Vivian Black. Long testified in substance that he did not intend to receive the papers nor title to the mobile home until he had paid for it. He agreed that he had not paid for it but said he had put out enough to be entitled to the papers, and he was not worried about the accounting of it. The record shows that Long signed a check dated October 17, 1970, in the amount of $3500.00 payable to Vivian L. Black, which bears a notation “Aristo-craft Mobile Home”. This check is endorsed by Vivian L. Black and bears the further stamped endorsement of Northeast National Bank of San Antonio, Texas, dated December 26, 1970. Mrs. Black did not testify in the case and there was no other evidence showing that the check in question was actually used to pay off the indebtedness and discharge the lien of the Northeast Bank of San Antonio against the mobile home. In response to questions asked by the trial judge, Long conceded that on October 17, 1970 he still expected to get some papers on the mobile home and he still had not received them. Long further said in substance that when he made the $3500.00 check out to Mrs. Black, he expected her to use it to pay off the San Antonio Bank; that after over two months had expired Long told Mrs. Black to get the check in; that Mrs. Black thereafter told him she had done so and that the papers would be coming through. Long specifically said that the papers he referred to were “The original title from the bank to her and when she got that, well, then she would title it over to me from that original title. That is what I expected.” Long also testified in substance that after Mr. Black died he thought about the fact that there might be an estate involved and he knew there were certain requirements of law to be met where an estate is involved.
The burden of proof in this temporary injunction proceeding was upon the appellant Long. He claimed to be the owner of the mobile home in question and had the burden to establish a probable right in such respect. The record is not satisfactory concerning the will or estate of Walter I. Black. There is some indication that application to probate his will had been made but that the will had not actually been admitted to probate. None of the papers relating to such will were actually admitted into evidence. There is no evidence in the record to show that Mrs. Black alone had the right to transfer the mobile home to *589Long. Long failed to carry his burden in such respect. There was a complete absence of evidence concerning the estate of Mr. Black and how ownership of the mobile home might be affected by administration of his estate. The trial judge was entitled to believe and hold that Long had not carried his burden to show a probable right of ownership under such conditions, and to deny the temporary injunction on that basis.
The pleadings in this case do not raise any issues concerning subrogation rights of Long. His claim was solely that of ownership of the mobile home. If Long should elect to rely upon subrogation rights because of his alleged payments, he would be entitled to amend and assert such rights, which are presently not in danger upon the record now before us. If additional parties are necessary or proper, the litigants and the court can take appropriate action in such respect.
In Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952) our Supreme Court discussed the powers of the Courts of Civil Appeals in the review of temporary injunction cases in part as follows:
“The Court of Civil Appeals held that the acts of respondents and those acting with them, above outlined, were unlawful, but concluded that ‘we do not believe that it reasonably follows that even though all such unlawful acts of conduct be enjoined, that a peaceful picketing of the entrances of the appellee’s plant, in such a manner as is guaranteed by law to strikers in a bona fide labor dispute, would result in future violence.’ The court does not hold that there was a clear abuse of discretion by the trial judge. What it holds is that in its judgment there will be no future violence if picketing is carried on under the modified injunction. It fell into the error of substituting its judgment for that of the trial judge. Such a substitution does not accord with the approved method of review of a temporary injunction. The appellate court cannot substitute its discretion for that of the trial court. It has no independent discretion in reviewing such an order; its sole function is to determine whether there has been a clear abuse of discretion by the trial judge. While the trial judge in this case may have erred in his judgment as to what would be the result of future picketing, it cannot be said that this record discloses an abuse of discretion by him. . . . ” (Emphasis supplied). 248 S.W.2d 463.
This rule was re-iterated by the Court in Briscoe Ranchers, Inc. v. Eagle Pass Independent School District, 439 S.W.2d 118, 120 (Tex.Civ.App., San Antonio, 1969, ref. n. r. e.) as follows:
“Certain well-established rules are applicable to our review of this case. The trial judge is endowed with broad discretion to grant or deny a temporary injunction. It is therefore well settled that the scope of appellate review from such an order is limited to the narrow question of whether the action of the trial judge in granting or denying the temporary injunction constitutes a clear abuse of discretion. Janus Films, Inc. v. City of Fort Worth, 163 Tex. 616, 358 S.W.2d 589 (1962); Texas Foundries v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460 (1952).” (Emphasis supplied).
This Court in Skinner Corp. v. Calallen Independent School District, 409 S.W.2d 929, 932 (Tex.Civ.App., Corpus Christi 1966, n. w. h.) held in part as follows:
“The granting or refusing of a temporary injunction is a matter that rests within the sound discretion of the trial court, and unless it appears from the record that the court has abused that discretion, the action of the trial court will be upheld. Southwestern Greyhound Lines, Inc. v. Railroad Commission of Texas, 128 Tex. 560, 99 S.W.2d 263, 270, 109 A.L.R. 1235. In an appeal from an order either granting or refusing a temporary injunction, as in other types of appeals, the appellate court is required to view all *590evidence and legitimate presumptions in the light most favorable to the judgment of the trial court’s exercise of discretion, and where the evidence is in conflict, an abuse of discretion on the part of the trial court is not shown. SI Tex.Jur.2d 345, Injunctions § 224; same, p. 350, § 225; Armstrong v. Armstrong, Tex.Civ.App., 295 S.W.2d 542; Wilson v. Whitaker, Tex.Civ.App., 353 S.W.2d 945; City of Corpus Christi v. Gilley, Tex.Civ.App., 379 S.W.2d 84, writ ref. n. r. e.”
When the rules announced in the above-cited cases are applied in this case, it is my view that a reversal of the judgment rendered by the trial court, as has been ordered by the majority opinion, amounts to a substitution of the judgment of this Court for that of the trial court. In my view such reversal should not be ordered because it clearly appears that there was no abuse of discretion in refusing a temporary injunction to appellant in this case.
I would affirm the judgment of the trial court. Since the original majority opinion has been withdrawn and a new majority opinion is now substituted therefor, the appellee will be entitled to file a further motion for rehearing within fifteen days as is provided by Rule 458, T.R.C.P.