
    Charlton v. Ragnet.
    Where an injunction to restrain an execution for costs was obtained on the ground that the costs were excessive, and there being no answer filed, the court gave judgment by default and perpetuated the injunction : Held, There was error; that thoro_ should have been an interlocutory order for the retaxation of the costs, after which the injunction might have been perpetuated as to the excess.
    Tlie ordinary consequences of a default in a suit for the recovery of money or specific articles do not follow a failure to answer in an injunction suit.
    Appeal from Nacogdoches. The appellee filed his petition to enjoin executions issued under an order of the court for costs in several suits then pending in tlie'Disdriet Court of that county. Some of these suits were instituted by the petitioner in his representative capacity as administrator, and one, he alleged, liad been instituted without his knowledge and consent; that he knew nothing of its being on tlie docket, and disclaimed-all interest in tlie same. He alleged that tlie costs for which said executions liad been issued were greater than allowed by law; that tlie executions had been ordered out by one Oheval-lier, who was and is liis security for costs, and who had become, by purchase and assignment, the owner of a part of the costs; that execution liad been levied on six hundred and forty acres of land, on which petitioner had erected a mill, and on which land tlie petitioner’s homestead was established, and where lie resided until a few days before tlie levy of the execution ; that lie had no other homestead, and intended again to retain to it. The injunction prayed for was granted, and at a subsequent term a motion was made to dissolve tlie injunction and dismiss the petition, oil several grounds stated. This motion was stricken out by order of the court, on motion of plaintiff’s counsel, because the motion ivas not sworn to; and judgment by default final was given or want of an answer, and the injunction made perpetual; from which an appeal was taken.
    
      Ochiltree and Ardrey, for appellant.
    
      Jennings and Walker, for appellee.
   Lipscomb, J.

The transcript in this case is incumbered with wliat seems, to liave been framed for a bill of exceptions and a statement of facts. Neither of them has been signed by the presiding judge, nor by counsel, and they arc therefore no part of tlie record, and should not liave been recorded.

Tlie correctness of the decree perpetuating the injunction will be discussed. It seems that tlie court below treated the default in not answering as amounting to tlie same in this case that would have been the legal consequence of a default where the suit had been for a sum liquidated and made certain by ail instrument in writing acknowledging the amount of the sum sued for, or for a specific chattel. In so doing, we apprehend the court erred. The only consequence of a failure to answer tlie petition would be an admission of the truth of the facts alleged in the petition. It would liave stood before the court as confessed, and tlie judge should liave looked into the bill-and decreed according to the facts so admitted to lie (rue, if lie believed that tiie.y afforded a ground for relief. Now there can be no pretence but that some costs were diie, anil tiiat under the order of the court tlie complainant was liable for legal costs. He says that they were excessive, and not in accordance with law. Then a relaxation of costs should liave been ordered. If the execution ran against him for costs, in the cases where lie sued as administrator, it should have been corrected. All the errors in tlie taxation of costs might have been corrected, but it should have been provided for and directed by an interlocutory decree directing a retaxation, as the record does not show that the court below liad sufficient facts before it to liave enabled the court to liave disposed of the costs without a reference. The judgment and decree is reversed and tlie cause remanded.

Judgment reversed.  