Galloway v. Marietta State Bank, No. 2807. [fn*]

No. 2807. [fn*] | Tex. App. | Jan 26, 1924

^* Writ of error dismissed for want of jurisdiction April 2, 1924. (after stating the facts as above). By this action the defendant in error seeks to perpetually enjoin the enforcement of a judgment rendered against it, after legal summons upon it, by a court of competent jurisdiction. No facts are alleged or shown as grounds for enjoining the judgment, other than that the principal debtor, T. Jake Brock, was insolvent at the time the writ of garnishment was served upon the bank, and three days previous to the rendition of the judgment the principal debtor had been adjudicated a bankrupt. It appears that the bank answered the writ of garnishment to the effect that it was indebted to the defendant in a sum exceeding the amount of the judgment rendered against it, but it does not appear that the bank set up, as a defense, the filing of the petition in bankruptcy. And it does not appear that the bank filed a motion for new trial in the justice court, or appealed from the judgment against it. And, further, it does not appear that the bank was prevented from availing itself of any remedy at law by any word or the conduct of plaintiffs in error, or by fraud, accident, or mistake.

Since the garnishment was served and the judgment entered within four months prior to the filing of the petition in bankruptcy by Brock, the garnishment lien created thereby became, under the terms of the federal law, null and void, on the adjudication of bankruptcy, as against the trustee. And it is plain that the bank could have urged the bankruptcy proceedings of Brock as a complete defense to the cause of action of plaintiffs in error against it, had it done so in the justice court. But, as it appears, the bank, in effect, waived any such defense in the justice court by not urging it or bringing it to the attention of the justice court. The justice court otherwise had full jurisdiction of the subject-matter, and of the person of the garnishee. The justice court was not bound to take judicial notice of the filing of the petition in bankruptcy but must have had notice through pleadings filed in the garnishment cause. Coppard v. Gardner (Tex.Civ.App.) 199 S.W. 650" court="Tex. App." date_filed="1917-11-28" href="https://app.midpage.ai/document/coppard-v-gardner-3958656?utm_source=webapp" opinion_id="3958656">199 S.W. 650 The legality, then, of the judgment of the justice court is governed by the laws of Texas; and, according to the laws of this state, the judgment rendered by the justice court is valid, and not void, as against plaintiffs in error. A judgment will not be enjoined where it appears that a party seeking relief therefrom had an opportunity to avail himself of legal remedies to vacate it, and neglected, without fault of the opposing side, to make use of them. Railway Co. v. Ware, 74 Tex. 47" court="Tex." date_filed="1889-05-14" href="https://app.midpage.ai/document/galveston-harrisburg--san-antonio-railway-co-v-ware-4896175?utm_source=webapp" opinion_id="4896175">74 Tex. 47,11 S.W. 918" court="Tex." date_filed="1889-05-14" href="https://app.midpage.ai/document/galveston-harrisburg--san-antonio-railway-co-v-ware-4896175?utm_source=webapp" opinion_id="4896175">11 S.W. 918. An application for injunction cannot be made to serve the purposes of an appeal. Turner v. Patterson, 54 Tex. Civ. App. 581" court="Tex. App." date_filed="1909-03-25" href="https://app.midpage.ai/document/turner-v-patterson-3983330?utm_source=webapp" opinion_id="3983330">54 Tex. Civ. App. 581,118 S.W. 565" court="Tex. App." date_filed="1909-03-25" href="https://app.midpage.ai/document/turner-v-patterson-3983330?utm_source=webapp" opinion_id="3983330">118 S.W. 565.

Where a party by fraud, accident, or mistake has been denied the privilege of availing himself of legal remedies open to him, he may seek the aid of a court of equity to relieve him of a void or voidable judgment rendered against him; but whenever he seeks the aid of a court of equity for relief against such judgment he must show either that no legal remedy was available to him for relief therefrom, or, if available, that he was prevented from availing himself of it by reason of fraud, accident, or mistake. He cannot fail to avail himself of legal remedies available and open to him and afterwards ask equitable relief.

The judgment is reversed, and judgment is here rendered in favor of the plaintiffs in error.