| Tex. | Jul 1, 1873
Lead Opinion
This was a proceeding by injunction to restrain the collection of a judgment rendered in the County Court of Washington county.
The prayer of the petition was based upon the allegation that Long, the plaintiff, had appealed from the judgment of the County Court to the District Court, and that his appeal had been erroneously dismissed. The remedy by injunction is granted by courts of equity where the courts of law cannot give relief. Ho case of this kind was made out, and the injunction was improperly granted; if improperly granted, it was properly dissolved. If the plaintiff had suffered wrong in the County Court, he had his remedy by appeal, or certiorari. H he was aggrieved by the judgment of the District Court, he had his remedy by appeal to the Supreme Court. If he has neglected or misused his ordinary remedies he is not entitled to the extraordinary remedy, by injunction.
It is by no means manifest to us that the appellant would be entitled to relief, even were the case retried upon its merits. There was certainly no error in permitting the intervenor Swearingen to recover judgment in
The judgment of the District Court is -affirmed.
Affirmed.
Walton & Green and J. D. & D. C. Giddings, on motion for rehearing, cited Herndon v. Bremond, 17 Texas, 434; Spencer v. Kinnard, 12 Texas, 186; Kerr on Injunction, 4 and 6; Thompson v. Chareau, 7 Mart. La., N. S., 334; Smalley v. Taylor, 668, and Clamageran v. Bucks et als.. 4 Mart. La., 487; Bone v. Walters, 14 Texas, 566.
Sales & Bassetts, for Swearingen, cited Windisch v. Gussett, 30 Tex., 744" court="Tex." date_filed="1868-01-15" href="https://app.midpage.ai/document/windisch-v-gussett-4890546?utm_source=webapp" opinion_id="4890546">30 Texas, 744; Wallerath v. Kopp, 31 Tex., 359" court="Tex." date_filed="1868-10-15" href="https://app.midpage.ai/document/wallerath-v-kapp-4890644?utm_source=webapp" opinion_id="4890644">31 Texas, 359; Rotzein v. Cox, 22 Tex., 62" court="Tex." date_filed="1858-07-01" href="https://app.midpage.ai/document/rotzein-v-cox-4889300?utm_source=webapp" opinion_id="4889300">22 Texas, 62; Smith v. Ryan, 20 Tex., 661" court="Tex." date_filed="1858-07-01" href="https://app.midpage.ai/document/smith-v-ryan-4889085?utm_source=webapp" opinion_id="4889085">20 Texas, 661; McNeill v. Halmarck, 28 Tex., 157" court="Tex." date_filed="1866-12-15" href="https://app.midpage.ai/document/mcneill-v-hallmark-4890239?utm_source=webapp" opinion_id="4890239">28 Texas, 157; Robinson v. Sanders, 33 Tex., 774" court="Tex." date_filed="1871-07-01" href="https://app.midpage.ai/document/robinson-v-sanders-4891063?utm_source=webapp" opinion_id="4891063">33 Texas, 774; Price v. Wiley, 19 Tex., 142" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/price-v-wiley-4888849?utm_source=webapp" opinion_id="4888849">19 Texas, 142; Heard v. Lockett, 20 Tex., 162" court="Tex." date_filed="1857-07-01" href="https://app.midpage.ai/document/heard-v-lockett-4888985?utm_source=webapp" opinion_id="4888985">20 Texas, 162; Eccles v. Hill, 13 Tex., 65" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/ecoles-v-hill-4888102?utm_source=webapp" opinion_id="4888102">13 Texas, 65; Chandler v. Fulton, 10 Tex., 2" court="Tex." date_filed="1853-07-01" href="https://app.midpage.ai/document/chandler-v-fulton-4887740?utm_source=webapp" opinion_id="4887740">10 Texas, 2; Hancock v. Devine, 17 Tex., 369" court="Tex." date_filed="1856-07-01" href="https://app.midpage.ai/document/hancock-v-dimon-4888652?utm_source=webapp" opinion_id="4888652">17 Texas, 369; Smith v. Cheatham, 12 Tex., 37" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/smith-v-cheatham-4887992?utm_source=webapp" opinion_id="4887992">12 Texas, 37; Mays v. Forbes, 9 Tex., 436" court="Tex." date_filed="1853-07-01" href="https://app.midpage.ai/document/mays-v-forbes-4887695?utm_source=webapp" opinion_id="4887695">9 Texas, 436.
Rehearing
on rehearing.—Of these two cases, one is the outgrowth of the other, and they may well be disposed of together.
Original suit was brought by D. C. Smith against the appellant, upon’an account due the late firm of D. C. Smith & Co. This suit was brought in the County Court before that court was merged into the District Court. Judgment was rendered for plaintiff for $338.12.
The defendant took an appeal to the District Court, then in session. At the return term of the District Court—the succeeding term—a motion was made by the plaintiff to dismiss the appeal, because the appeal bond recited the judgment as rendered in favor of D. C. Smith & Co., whereas it was rendered for D. C. Smith; and also be
The defendant’s counsel asked leave to prepare and file a new bond, which was refused by the court below.
There was no error in this ruling. The bond misdescribed the judgment appealed from.
While it has been held that a bond, deficient only in amount, might be superseded by a new one for a sufficient amount, yet we know of no authority for1 substituting a new bond for one radically defective in form. (Smith v. Cheatham, 12 Tex., 37" court="Tex." date_filed="1854-07-01" href="https://app.midpage.ai/document/smith-v-cheatham-4887992?utm_source=webapp" opinion_id="4887992">12 Texas, 37; Hollis v. Border, 10 Tex., 277" court="Tex." date_filed="1853-07-01" href="https://app.midpage.ai/document/hollis-v-border-4887805?utm_source=webapp" opinion_id="4887805">10 Texas, 277.)
The defendant gave notice of appeal to this court. This proceeding was had November 12, 1870. The appeal was not prosecuted; but, on the twenty-fourth day of June, 1871, the defendant filed a writ of error bond, and the cause was brought here on error.
The action of the District Court, dismissing the appeal, we think, was proper. This disposes of this branch of this litigation.
. On the twenty-fifth day of November, 1870, W. C. Long, the defendant in the judgment above referred to, obtained a writ of injunction, restraining the collection, of the judgment, upon the ground that— ■
1. Long had appealed from the judgment of the County. Court to the District Court, and the appeal was improperly dismissed.
2. That he had a good defense to the action in the County Court, but that the County Court erred in admitting improper evidence and in its charge to the jury ; and that the jury, in its blindness and stupidity, found a verdict fo,r the plaintiff.
Smith, the plaintiff in the original suit, answered that
Upon motion, the injunction was dissolved, and judgment rendered for Swearingen, against Long and his sureties.
We see no error in this action of the District Court. The extraordinary power of the District Court will not be exercised, if the party applying for its exercise has failed properly to use a legal remedy. If he failed to appeal, or prosecuted an appeal in a defective or insufficient mode, and has lost his remedy, he cannot proceed in equity. (Smith v. Ryan, 20 Tex., 661" court="Tex." date_filed="1858-07-01" href="https://app.midpage.ai/document/smith-v-ryan-4889085?utm_source=webapp" opinion_id="4889085">20 Texas, 661; Rotzein v. Cox, 22 Texas, 62.)
Upon rehearing, we see no reason to change the ruling of this court heretofore announced.
These cases being treated together, and it appearing that there are two judgments in the court below, one in favor of Smith (which he renounces), and one in favor of Swearingen, a single judgment will be rendered in this court, in favor of Swearingen alone.
Affibmed.