Miller v. Clements

54 Tex. 351 | Tex. | 1881

Quinan, Commissioner.

1. The injunction issued in this case was properly dissolved. It issued more than a year after the rendition of the judgment it enjoins. The judgment was rendered on November 10, 1870. The petition was filed January 30, 1875. Pasch. Dig., art. 3931.

2. Nor is any good reason shown why the writ was not sooner sued out. He charges neither fraud nor false promises practiced or made by the plaintiffs in the judgment.

3. Nor was the judgment a nullity by reason of anything he has alleged. The suit against him was instituted in 1865. It remained pending and was continued from term to term until matured into a judgment. He avers that he obtained a discharge in- bankruptcy in 1868; that plaintiff had legal notice of that fact; that by the provisions of the general bankrupt law, all proceedings in the district court of Gonzales county against him were stayed; that the court had no jurisdiction to proceed further in the case; that he had no notice, nor was he represented in court after his adjudication in bankruptcy, and no knowledge of any judgment against him until September 22, 1874; but he does not aver that the continuance of the case was had because of any suggestion of Ms bankruptcy or application therefor by Mm; nor that he pleaded his discharge in that smt.

“ A state court will take no notice of proceedings in bankruptcy in a federal court unless it is properly presented in a way that it can be judicially acted upon.” Coffee v. Ball, 49 Tex., 16; Flanagan v. Pearson, 42 Tex., 1.

Nor is a discharge in bankruptcy of any avail, unless pleaded and proven. Manwarring v. Kouns, 35 Tex., 172.

Nor does the state court lose its jurisdiction of the person of the defendant by Ms being adjudicated a bankrupt. Flanagan v. Pearson, 42 Tex., 1.

i Miller then continued m court a party to the smt against him. It was Ms duty, if he wished to avail Mmself of his discharge, to plead it; not having done so, and no fraud being practiced upon Mm to prevent Mm from doing so, he cannot set up his negligence or ignorance of the law to set aside a judgment which by his own default he has suffered to be rendered against him. Neither in law nor in eqmty has he any claim to be relieved from the consequences of Ms own laches.

4. The judgment is valid.

Objection is made to the levy of the execution upon Ms cotton by a special deputy sheriff. This seems to be frivolous. The officer was none the less a deputy sheriff because he may have styled Mmself a special or principal deputy. Besides, Miller replevied the property, givmg bond in due form; and having so obtained it, he must be considered as waiving all objections to the mere irregularity, if any, in making the levy. The bond is a statutory judgment upon which execution may issue. Portis v. Parker, 8 Tex., 23.

5. The execution was properly issued on the forfeiture of the delivery bond. Sayles’ Practice.

6. The judgment upon the dissolution of the injunction is rendered against Miller and his sureties on the bond for injunction for $150, and this is complained of as error. The whole judgment was enjoined. The bond should have been given in double the amount of it, and in that case the defendant in the injunction suit would have recovered judgment on the dissolution of it, for his whole debt. He cannot complain that by the failure of the judge to require a bond in sufficient amount, the judgment can only be rendered against him and sureties for the amount of the bond. The judgment rendered is not as plaintiff in error objects, for damages, but for so much of the principal debt.

1. The judgment was final upon the dissolution of the injunction—it disposed of the whole case. No motion was made to continue it over for further adjudication, and the decree was therefore properly rendered. Prior v. Emerson, 22 Tex., 165.

We are of opinion that the proper disposition of this case is that it be affirmed.

Affirmed.

[Opinion delivered March 8, 1881.]