59 Tex. 484 | Tex. | 1883
The appellant assigns as error, “the ruling and judgment of the court in dissolving the injunction and dismissing the petition; and in rendering final judgment for defendants McComas & Co. on their original account against plaintiff and his sureties on the injunction bond, without giving the plaintiff an opportunity to be heard in his defense against said account.”
The first of these propositions is decisive of the latter; for, if the injunction was correctly dissolved, for want of equity in the bill, the proper judgment of the court upon that order would be to render judgment against the plaintiff and the sureties on his injunction bond for the principal sum enjoined, including the ten per cent, damages, unless the plaintiff sought to amend his petition after the court held the petition insufficient under said order. But here it does not appear that the plaintiff asked leave to amend his petition, or to otherwise provide for supplying the want of equity in his bill, nor to delay the hearing of the cause, in order that he might be enabled to meet the objections which had been sustained to his petition.
It is not error to dismiss a bill for injunction which is defective, where the plaintiff does not ask that it be continued for hearing with leave to amend. Gaskins #. Peebles, 44 Tex., 390. The same rule applies to the case of an interlocutory order dissolving the injunction, made on the hearing, of an answer denying all equity in the petition, unless it appears from the record that the plaintiff asked that the petition be continued over for trial or hearing as an original petition or suit. Lively v. Bustow, 12 Tex., 60. If the
The right of the plaintiff “to have an opportunity,” as he puts the proposition in the assignment of errors, to be heard in his defense, involved and was of the essence of the merits and gist of his bill in equity for relief by injunction; and the bill being wanting in merit to entitle him to relief, there was an end of his right to a hearing in his defense against the defendants’ account. It was no longer an account, but had been merged into a judgment, which this suit sought to set aside and enjoin the enforcement of; and the plaintiff failing to show grounds for such relief, there remained no case before the court whereon to rest a hearing of the merits of the plaintiff’s defense against the account.
It is quite true that the matters of original controversy between the parties to a judgment, the enforcement of which, on account of its invalidity of irregularity has been enjoined, will be taken hold of by a court of equity in an injunction suit brought to restrain and enjoin its operative effect; and having obtained jurisdiction and cognizance of the case for one purpose, will retain it for the further purpose of doing full and complete justice between the parties, and will give the appropriate judgment upon the cause of action on which the judgment which was enjoined had been rendered, according to the justice of the case. See Witt v. Kauffman, 25 Tex. Sup., 386; 21 Tex.; 186; 22 Tex., 241. The plaintiff, however, occupies a position which disables him to invoke this rule; if his petition showed no sufficient grounds for equitable relief by enjoining the judgment, the court acquired no right to unsettle the judgment of a court of competent jurisdiction which, had determined the matter of controversy, and which then was in full force.
The court did not err in sustaining the motion to dissolve the injunction for want of equity. The petition of the plaintiff relied upon the defect in the service of the writ upon him as having the effect to render the judgment void. The copy which was served upon him was not a true copy of the original, in that the copy.cited him to appear on the first Monday of February, 1875, whereas the original writ was dated and the copy was served on the 23d- of
The principles and rules which govern courts of equity in cases like the present are quite too well recognized and familiar to make it necessary to adduce authorities in support of the maxims which have been announced as applicable here. See, however, 3 Wait’s Actions & Def., p. 733, and authorities there cited.
The district court had jurisdiction of the cause, without reference to the amount involved. Anderson County v. John S. Kennedy, 58 Tex., 616.
We think the judgment ought to be affirmed.
Affirmed.,
[Opinion approved May 25, 1883.]