Flournoy v. Healy, 31 Tex. 590

Flournoy v. Healy

31 Tex. 590 | Tex. | 1869

Morrill, O. J.

—The onk" Qrror assigned in this case is, that the district court er . rendering a judgment for a ■ certain number of dollars m specie, in violation of the legal-tender act of the United States.

This court, at the Austin branch, in 1867, [Shaw v. Trunsler, 30 Tex., 391,] decided the legal tender act constitutional, and hence any judgment having a tendency to impair, impeach, or set aside the validity of this act would be, pro tanto, erroneous. Though the defendant in the execution could satisfy it, and would be fully released on the payment of the number of dollars called for therein in the legal tender of the United States, and the sheriff was under no obligations to collect any other kind of money, and the word specie might be regarded as surplusage, yet inasmuch as the surperfluous words are calculated to distract and mislead the ministerial officers of the court, as well as the parties litigant, we regard their insertion in the judgment as improper. The defendant in the execution had a right to have a proper judgment entered by appealing to this court.

The defendant in error has called our attention to the *592case of Windisch v. Gussett, decided at the last term of the court, [30 Tex., 744,] wherein a judgment of the district' court was enjoined for sundry reasons, one of which was the same as the error assigned in this ease, and in which the injunction was dissolved. The counsel makes the inference that, because the injunction was dissolved, therefore an appeal does not lie. An examination of the case referred to will show, that one of the reasons assigned by the court for dissolving the injunction was, that the party was not authorized to resort to the extraordinary writ of injunction, when he had the legal and ordinary remedy of appeal or writ of error. The judgment is reversed and reformed.

Decreed accordingly.