Clegg v. Darragh, 63 Tex. 357

Clegg v. Darragh

63 Tex. 357 | Tex. | 1885

Willie, Chief Justice.

The basis of the relief sought against Darragh in this case is the alleged unauthorized execution of the claim bond by a party purporting to be the attorney of the principal in the bond.

As to whether or not this would be a good defense to a suit upon such a bond as against an obligee who had no notice of any defect in the manner of its execution, it is unnecessary for us to consider in the present case.

There is some conflict of authority upon the point when it arises upon an official bond, or one taken in the course of judicial proceedings, some courts holding that it is the duty of the officer to whom such bonds are delivered to see that they are properly executed, and, if signed by an attorney, that this has been done under proper authority. Seely v. People, 27 Ill., 173; Guild v. Thomas, 54 Ala., 414.

Admitting for the purposes of the present case that this is the true rule, it cannot avail the appellant, for the reason that he did not set up the defense at the proper time, and has not shown a sufficient reason for his failure in this respect.

It appears from the petition that the bond was made October 15, 1883, that judgment was rendered upon it in April, 1884, and that the appellant was first informed that the principal’s name had been signed to it without authority in June of the same year

This information, when received, seems to have been given him without any effort on his part to obtain it. He had signed a bond which upon its face purported to have been executed by the principal obligee through an attorney, and yet for the long space of eight months, during which time judgment had been rendered on the bond, he made no inquiry into the authority of the attorney to sign the instrument. His principal resided in a distant state, and his co-surety was dead, and yet the appellant took no steps to defend the proceedings upon the bond, when, under the law, he was primarily liable to answer for any breach of its conditions. He was in court by virtue of his signature to the bond, and entitled to no other service *361in the cause, but bound to take notice of all proceedings looking to a forfeiture of the bond. The principal and its residence were well known to him, and within easy reach of any inquiry or communication he might choose to make in reference to the validity of the instrument. It matters not that he did not suspect anything wrong in reference to his principal’s signature. Independent of the fact that it was not signed by the corporation, which should have put him upon inquiry as to the genuineness of its execution by the principal, he was bound to find out, as far as possible, every defense that could be urged against a forfeiture, and plead it before the forfeiture was taken.

The theory of the appellant’s case is that he can enjoin the execution of a judgment for causes which he might, by reasonable diligence, have pleaded to the suit in which it was obtained, and which his own negligence deprived him of the privilege of urging at the proper time.

The appellant was, in effect, seeking a new trial after the expiration of the term at which the judgment was rendered, without showing any diligence on his part to prevent the judgment, or that he was prevented from making a defense to the former action by fraud, accident or the acts of the opposing party, wholly unmixed with any fault or negligence of his own. We have too frequently held that a new trial cannot be granted when those facts do not appear, to require any discussion of the subject in the present case. Johnson v. Templeton, 60 Tex., 238; Plummer v. Power, 29 Tex., 14; Nevins v. McKee, 61 Tex., 413.

The court did not, therefore, err in sustaining exceptions to the petition. Mor do we think that there was error in dismissing the cause as to all the defendants. If the petition set forth a good cause of action against Mrs. Engelke, as executrix of the appellant’s co-surety, it was not such cause as could be made grounds for an injunction. Admitting that Clegg could go into a court of equity and compel his co-surety to contribute, there was nothing in the petition to show that this right to require contribution was so immediately jeopardized as to require the issuance of a writ of injunction to preserve it for the defendant. The only parties against whom the injunction was asked were Darragh and the sheriff, and it having been properly dissolved as to them, the only means of keeping it in court as to any of the defendants and for any purpose was by asking that the petition remain in court as an original bill, which the plaintiff having failed to do or to amend, the court could but dismiss the suit.

*362It does not appear from the record that the attention of the court was called to the fact that the petition sought to enjoin the collection of the costs in the original proceeding. The injunction was sought for the reason that the judgment on the claim bond was void, and the prayer was that, in case it was held valid, the co-surety might be made to contribute to its payment. No prayer was made to enjoin the collection of the costs in case the judgment was sustained, and if this was desired under the prayer for general relief it should have been brought to the notice of the court.

Besides it would seem that the costs incurred by the various parties to the original suit were adjudged against them, including the appellant. It does not appear how the costs were apportioned in the execution, and hence the court could not know as to how much, if any, should be enjoined.

It is the settled rule of this court not to revise the ruling of the district court in giving or refusing damages upon the dissolution of an injunction unless there appears to have been manifest error, or mistake of law. Ross v. Lister, 14 Tex., 469; Fall v. Ratliff, 10 Tex., 293.

The appellant’s bill was without merits, or grounds upon which it could upon the face of it be supported, and we cannot say that the court did not properly exercise its discretion in imposing damages. There is no error in the judgment, and it is affirmed.

Affirmed.

[Opinion delivered February 20, 1885.]