285 S.W. 626 | Tex. App. | 1924
The appellee in this case has applied for a writ of prohibition to prevent an alleged interference with the judgment of this court heretofore rendered. The judgment of this court, on original hearing was one of affirmance of the judgment of the lower court, which awarded appellee recovery of a stated sum of money with foreclosure of an attachment lien on certain property. The judgment also was against the sureties on appellant's supersedeas appeal bond. After such affirmance, the sureties on the appeal bond filed suit in the court below, to enjoin the execution of the judgment as against them, alleging that pending the appeal in the case, the plaintiff had caused the attached property to be released from the attachment and delivered to third parties, so that it was not subject to the satisfaction of the judgment; that such property was of value sufficient to have discharged the amount of said judgment; that the principal judgment debtor is insolvent; that by reason of the release of such attached property, the said sureties were wrongfully deprived of their rights of subrogation, and should therefore, be released from liability on the appeal bond and the judgment rendered thereon. A hearing of the injunction case was had and judgment rendered enjoining the execution of the judgment as against the sureties. Whereupon the appellee Martin has filed this application for writ of prohibition.
The sureties on the appeal bond certainly had the right to present, in some court, the facts which they claimed released them from liability on the supersedeas bond, and have an adjudication thereof. These facts could not have been made to appear in the record presented on appeal, as they transpired after that record was made, and pending the determination of the appeal. Under such conditions, the judgment of this court ought not to be conclusive of the rights of the parties as affected by such facts, unless the sureties *627
neglected an opportunity of presenting them in some other way to this court prior to the rendition of its judgment. This court is authorized to hear evidence of facts outside the record only in such matters as affect its jurisdiction. R.S. art. 1593; Ennis Mercantile Co. v. Wathen,
We express no opinion as to the merits of the case made by the sureties in the injunction proceeding, since the application for writ of prohibition cannot be made to serve as an appeal from the judgment rendered in that proceeding. Eustis v. Frey (Tex.Civ.App.)
The application will be denied.