88 S.W.2d 632 | Tex. App. | 1935
This is an original proceeding in this court, an application for a writ of prohibition from this court directing Earnest Robertson, district judge of the EightyNinth judicial district of Texas, to dissolve an injunction granted in that court restraining relator herein, S. B. Jackson, from enforcing a judgment recovered by him against C. Birk and affirmed by this court in an opinion in
The second suit contained a count seeking recovery on debt, also one in trespass to try title, and further alleged other amounts due, as rents, damages, etc. In this last suit, Birk obtained a judgment by default, which was thereafter reversed by the Court of Civil Appeals,
The petitioner, S. B. Jackson, now seeks a writ of prohibition against the district judge Birk and others on the ground that the latter court, in granting said writ, has interferred with the enforcement of the judgment of this court, the judgment of the lower court in the first suit having become the judgment of this court by affirmance. Nash v. McCallum, Dist. Judge (Tex. Civ. App.)
After a careful consideration of the injunction proceeding complained of, we do not construe it to be an attack upon *633
the judgment of this court. It does not challenge the validity or binding effect of that judgment to any extent, but rather concedes its binding effect and seeks partial relief therefrom on equitable grounds, viz., that said Jackson is insolvent and that said Birk is entitled to have an alleged just claim or indebtedness held by him against said Jackson set-off against the judgment. As said in Perfection Rubber Co. v. Randle,
The claim asserted by Birk against Jackson in the second suit was in existence when the first suit was tried, but under the principles pertaining to proper joinder of causes of action, we are of the opinion that it could not have been legally set up as a set-off to the matters and claims alleged in the first suit. Certainly not as against an exception. Not being a legal offset, no burden rested upon Birk to present it in that court.
In the case of State ex rel. Bostick v. Stark et al. (Tex. Civ. App.)
For the foregoing reasons, we hold that the petition filed herein by the relator is insufficient as a basis for the relief sought, and that the same should be dismissed. It is so ordered.