
    Bryan’s Adm’rs v. Bridge and others.
    ■Where a fact has once been tried and settled, it <*aunot be again put in issue in a controversy' arising out of the subject-matter between the same parties. (Note 26.)
    Ki:-IIEAItING.
    Where a valid levy is made, it is prima facie sullieient; and another cannot be made until it is shown that the first is not sufficient; at al! events, id is satisfaction to the full extent of the value of the goods. The sheriff may show, that at a ."ale, they did sell for enough to satisfy the execution; or that the property was sold and the proceeds applied to the satisfaction of an older execution; or on a judgment older, that had not lost its lien. (Not© 27.)
    It seems that it is not competent to issue an alian execution while an appeal from a motion to quash the return on the original is pending.
    Where an injunction is obtained for good cans*', but is afterwards dissolved for good cause arising subsequent to its issue, it is nob proper to render judgment against the principal and his sureties for the amount enjoined, nor for costs.
    
      A verdict on pleadings which present no isstio of fact, should be disregarded.
    Appeal from Galveston. On the lll.h day of 'May, 1847, Edward A. and Henry P. Bridge obtained a judgment in the District Court of Galveston comity, against William Bryan and Joseph llasbrook for §371.20 and costs of suit. On the 3d of July next thereafter, an execution was issued and delivered to tlie sheriff, which was levied by him on a negro man. Philip, oil the 14th of tlie same month, the sheriff indorsing his levy on the execution, and also advertising the property for sale. After the levy and advertisement, the sheriff, at tlie request of t’.e defendants and their counsel, readvertised the property on the ground that the notice was not in time for the next sale day. The negro man having run away or been removed, the sheriff made a special return excusing- iii.s failure to sell, and showing- that lie had not taken possession of the negro Philip, but had merely received liis name from tlie defendant in the execution. At a subsequent day, tlie sheriff by the direction of the plaintiff’s attorney levied on a tract of laud on Galveston island, or Bryan’s interest in the same, but made no sale and returned tlie execution for the reason that the parties would not indemnify him in making- a sale. Tlie return not being- a return of nulla bona, the plaintiffs in tlie execution moved tlie District Court, at the next term to quash the same, on the ground that it was “illegal, ■“invalid, and insufficient, and only tended to embarrass the plaintiff’s execution.” Tlie return of the sheriff’ ivas -quashed, and an appeal from the decision on tlie motion taken to the Supremo Court.
    Pending- the appeal, and on tlie 9th of February thereafter, the plaintiffs put into the hands of the sheriff’ a new execution on the same judgment; which, on the 8th of April following-, was levied on eighty head of neat cattle, the property of Bryau, and the cattle advertised for sale.
    The bill in this cause was filed April 22, 1848, by William Bryan, for a perpetual injunction against the sale of any other property than that levied on under tlie first execution and still unsold; and on the ground that such first levy was sufficient to satisfy the judgment.
    In tlie. meantime the appeal to the Supremo Court was decided. (6 Tex. B., 137.) The plaintiffs claimed a jury. There was a verdict for the defendants; upon which the court below dissolved the injunction so far as the defendants Edward A. Bridge and Henry P. Bridge, were concerned, and gave judgment in their favor against the plaintiffs and their sureties for the amount of the ■original judgment, interest and costs to be paid by the plaintiffs in due course, “and for which execution may issue against the” sureties. It was further adjudged that the execution which was issued in February, 1848, and levied on cattle, should be annulled, and the plaintiffs recover from the defendants their ■costs in that behalf.
    On the trial the court charged the jury that they could not take into account the question of a levy on the negro man Phillip, or whether there was one or not, for the reason that the Supreme Court had settled the question, to the effect that the proceedings of the sheriff in relation to said negro man Phillip .amounted to no levy.
    
      
      Sherwood Sf Goddard, for appellants.
    The questions whether the negro man Phillip was actually levied on, and whether the title was exclusively in Bryan, could not be adjudicated on motion. The instruction of the court to the jury to the effect that tlie Supreme Court had decided these questions, was error. These were matters to he tried by jury, and tlie decision of the Supreme Court on motion could not take away tlie right of trial by jury.
    The allegation in the bill is, that the negro man Phillip was the property of Bryan at tlie time of the levy. It was not sufficient for the defendants in their answer to say, that Bryan’s title was a tax sale title and doubtful. Whatever it was, tlie sheriff was bound to proceed and sell it after levy.
    It is admitted in the answer that tlie value of the negro was much more than the judgment, and prima facie, a sufficient levy had been made to satisfy the judgment.
    Upon what ground the bill was dismissed, injunction dissolved, and judg ment rendered against the bail after the plaintiff had shown cause for perpetually enjoining tlie illegal execution, it is difficult to conceive.
    
      Jones fy Ballinger, for appellees.
   LIPSCOMB, J.

The only ground for relief in the petition for an injunction grows out of the Iev3r upon tlie slave pointed out to the sheriff by appellants’ intestate. If the levy had been valid and was on property sufficient to satisfy the execution so far as the defendant in the execution was concerned, it would' have been satisfaction; but if the defendant had failed to make a levy and his neglect had been prejudicial to the rights of the defendant in the execution, it would have been no matter of concern to the plaintiff in the execution: it would have been no satisfaction of the execution; but it would have been a matter to be adjusted between the defendant and the sheriff. The levy was quashed and the defendant in the execution appealed to this court. Pending the appeal this injunction was obtained. -And it seems to have been intended by the court, that it should only operate during tlie pending of the appeal on the judgment quashing tlie return of tlie levy upon the negro. “ On the man“date of the Supreme Court,” showing an affirmance of the judgment, tlie court might and ought to have dissolved the injunction and dismissed the petition; because, the only question that afforded any pretext of .equity in it-had been decided by the Supreme Court adversely to the petitioners. But, on the claim of a jury trial by the appellants it was awarded to them ; and then the court charged tlie jury that tlie matter relating to tlie levy of the execution had been settled by the Supreme Court; and that it was not before them. In tiffs there was no error. It ought to have been settled without the intervention of a jury, because no question of fact was presented; yet, as it resulted in tlie same, tlie verdict being for tlie defendant, and the judgment followed, it Is only an irregularity that can surely afford no cause of complaint to the appellant. The judgment is affirmed.

PETITION FOR RE-HEARING.

The appellants in the above entitled cause respectfully petition the Honorable-Supreme Court for a re-hearing- in said cause. They do so for the reason, among others, that the honorable judge who wrote out the opinion was not put in possession of a copy of the brief furnished the court, and owing to that circumstance, in all probability, the record seems to have been misconceived.

It is suggested by appellants that the controlling points on which the cause was carried to the Supreme Court have not been adjudicated; and they therefore respectfully pray that they may again be heard in said cause, and that they may be permitted to furnish briefs anew.

Respectfullv submitted.

SHERWOOD & GODDARD,

Of comise! for appellants..

LIPSCOMB, J. The only ground on which the injunction could properly have been granted in this case, is the issuing and levying another execution on tiie cattle, after the question of the levy made upon the negro Phillip, by the first execution, had been taken to this court, by appeal from the judgment of the District Court quashing that levy and return. If that levy had been valid, the plaintiffs in the execution could have had no other until it had been shown that the levy, so first made, was not sufficient. Frima facie, it was sufficient; and a levy of the goods of the defendant is presumed to be sufficient, and to the full extent of their value, is payment pro tanto. The sheriff may show, that at a sale, they did not sell for enough to pay and satisfy the execution; or, that the property was sold, and the proceeds of the sale applied to the satisfaction of an older execution; or on a judgment older that had not lost its lien.

l'/hilst the appeal from the judgment quashing the levy and return was pending in this court, no other execution could legally have issued, nor could there have been a new levy made. The execution issued and levied on the cattle was invalid, aud ought to have been quashed, aud the plaiutiffs in the execution enjoined from issuing another, until the appeal had been disposed of by this court. After the- judgment of tiie District Court had been affirmed by this court, tiie plaintiffs in the execution could then have sued out an alias. The suing out another execution whilst the appeal was pending was sufficient ground for relief.

Tiie court below seems to have taken a correct view of tiie illegality of the execution so sued out; and, by its decree, quashed it; aud so far the decree is right; but there was no ground for decreeing judgment against tiie security iii tiie injunction bond, aud against the appellant, for the amount of the judgment and costs. The injunction was properly dissolved after the affirmance of the judgment of the District Court, quashing the levy and return of the first execution, had been rendered by this court. It was error to render the j udgment against the appellants and the securities for the amount of the original judgment. That judgment had never been enjoined, and the error of the plaintiffs in tiie oxecutiouhad created the necessity for the appellants’ instituting these proceedings. Tiie injunction would never have been asked for nor granted if (he second execution had not been unlawfully sued out.

The wrong having been committed by the plaiutiffs in the execution, it is no more than right that they should pay ail the costs of such wrong. We believe, therefore, that tiie District Court erred in its decree; and that for such error, the decree must be reversed, and rendered as the District Court ought to have rendered it. The verdict of the jury is thrown out of consideration of the case as wholly unimportant, and founded upon a question that they had nothing whatever to do with, it being on the legality of tiie second execution which, upon the record, was a question of law, and not of fact.

It is therefore ordered, adjudged, and decreed, that so much of the decree of the District Court as quashed tiie execution, and the levy on tiie cattle made by the same', and so much of the said decree as dissolved the injunction, is affirmed; and it is ordered, adjudged, and decreed, that so much of the said decree and judgment as rendered a judgment against the appellants and their sureties in tiie injunction bond, be, and tiie samé is hereby reversed and annulled ; and it is further ordered, adjudged, aud decreed, that so much of the said decree as decreed the costs to be paid by the appellants, be also reversed; and it is further decreed that the appellants recover of the appellees all costs of this court and of the court below; and it is ordered that this decree'be certified to the court below for its observance.

Reversed and reformed.

Note 26. — Prewitt v. Everett, post 283; Pennell v. Lovett, 15 T., 265. The judgment of the court refusing a continuance will not be revised, unless the party asking a reversal on that ground, has reserved the point by a bill of exceptions. Campion v. Angier. 16 T., 93; Parker v. McKelvain, 17 T., 157; Dangerfield v. Paschal, 20 T., 536; Harrison v. Cotton, 25 T., 53; McMahan v. Busby, 29 T., 191.

Note 27. — A levy upon personal property sufficient to satisfy the execution has been held, as between the debtor and creditor, a satisfaction of the debt; but is held otherwise of a levy upon land. White v. Graves, 15 T., 183.  