39 Tex. 250 | Tex. | 1873
There was error in- overruling the demurrer and motion of the appellant in the District Court. A district judge can only grant an injunction to stay an execution within one year after judgment has been obtained. (Doss v. Miller, 6 Texas, 340.) Article 3932, Paschal’s Digest, provides that injunctions to .stay proceedings in a suit, or éxecution on a judgment, shall be returnable and tried in the District Court of the county where suit is pending or judgment rendered. Baldridge et al. sought by an injunction sued out in Calhoun county, on'the twenty-ninth of February, 1868, to ■enjoin two judgments rendered in Matagorda county, one in 1858 and the other in 1859, as well as a judgment -of the Supreme Court, affirmed March 30, 1864. We <do not think the injunction should have been granted, even if prayed for in the proper county. Baldridge, Sparks & Co. had neglected to set up the same matters of defense when the suits were pending against them in the District Court which they relied on for their injunction ; and in this case, at least, the District Court had no power to enjoin a judgment of the Supreme •Court.
The facts in this case are somewhat peculiar. Baldridge et al. sued Cook in Calhoun county, in February, 1858. They prayed for and obtained an injunction .against a judgment which Cook had obtained against Baldridge, Sparks & Co., in Matagorda county, in April, 1858. The petition shows that they had previously enjoined the same judgment in Matagorda county, which had been dissolved, and a second judgment rendered against- them in 1859. The case was taken by writ of error to the Supreme Court, and affirmed, with damages. (27 Texas, 565.)
Reversed and dismissed.
F. S. Stockdale, for plaintiff in error, filed an elaborate brief on motion for rehearing. Its length and the fact that the decision upon rehearing is based upon the statute, prevents its insertion.
McAdoo, J.—We can see no reason to change our former opinion in this case. The injunction was not sued out in proper time, and not in the proper county. On this subject the statutory provision is plain and peremptory.
The motion for a rehearing is overruled.
Overruled.