Austin v. Union Paving and Contracting Co.

This is an appeal from a judgment in favor of plaintiff and from an order denying the motion of defendant, Union Paving and Contracting Company, for a new trial.

The first point to be considered is that the court erred in overruling appellant’s demurrer to the complaint.

The action was brought to restrain and enjoin the defendants from selling a piece of land alleged to be owned by plaintiff under a writ of execution under a judgment in favor of appellant and against one Ellen Mo wry, a former owner of the land. The complaint alleges that plaintiff is and ever since the seventeenth day of January, 1903, has been the owner in fee of the land described in the complaint and sets up his claim of title, from which it appears that such title was derived by mesne conveyances from Ellen M. Mowry, who was the owner of the land when a judgment in an action wherein appellant was plaintiff and Ellen M. Mowry was defendant was docketed. Prom the complaint it appears that Ellen M. Mowry took and perfected an appeal from an order denying her motion for a new trial in said action by giving the usual bond for costs in the sum of $300 and a stay bond in the proper form in double the amount of the…