62 Tex. 205 | Tex. | 1884
It seems that this case, involving originally the sum of $95, has been pending before the courts of this-state since the year 1876.
It was first tried in the justice’s court of Anderson county in July, 1876. It was then carried at once, being prosecuted with vigor, tO' the county court of that county, and there tried at the September term, 1877. Thence it was carried by appeal by the plaintiff in error to the court of appeals, and there dismissed in November, 1878, for want of a sufficient appeal bond. Hot discouraged by this, adverse result, the plaintiff in error promptly sued out a writ of
From this adverse action of the county court, the plaintiff in error at once prosecuted an appeal to the Tyler term of the court of appeals in October, 1881, and there the judgment of the county court was affirmed; the court of appeals holding, as the county court had previously decided, that the county court had no jurisdiction of the case, because the appeal from the justice’s court had never been properly perfected, so as to confer power on the county court to try the case. Hot discouraged by this (seemingly) final action of the appellate court, the plaintiff in error, in July, 1882, filed a suit in the county court of Anderson county for the purpose of enjoining the collection of this judgment that had been rendered five years before against him. The grounds on which the writ of injunction was sued out do not differ materially from those taken in the original suit that had already been finally disposed of by the action of the court of appeals in affirming the judgment rendered in the court below. In January, 1883, the case was transferred te the justice’s court (in which court it had originated), and it was there tried in February, 1883, resulting in a verdict and judgment for the plaintiff in error. The case was at once appealed to the county court, and at the March term, 1883, it was transferred from the county court to the district court of Anderson county. See Morris v. Edwards, White & Willson’s Civil Cases, Ct„ of App.,, pp. 262, 276.
Having in the meanwhile learned, as he stated, that the county court had no authority to issue the writ of injunction, he in this-suit in the district court, in a pleading that appears to be an original petition, applied to the district court for a writ of injunction in May, 1883, and obtained it. To this amended (or original) petition there were twelve exceptions filed, bringing in effect before the court all the matters heretofore passed on. Amongst these exceptions were the following:
“Because the petition of plaintiff in error purported to be an amended original petition, when it was in fact an original petition without a predecessor.
“ Because the petition does not aver at what time the husband of Mrs. Dismukes transferred the note to W. L. Edwards, and whether
“ Because the petition does not show the date of affirmance on second appeal or the date of filing mandate, without which the allegations concerning dormancy of judgment are altogether insufficient.
“ It does not state the nature of said offset, nor whether the same, when sought to be introduced before Justice Fields, was barred by limitation.
“It shows that said offset, if there was any, existed before the trial before Fields, and was known to plaintiff Morris, and alleges no fraud of Edwards, Barnes or Wright.
“ It shows that more than a year has expired since judgment in justice’s court or trial in county court on affirmance in court of appeals, and does not show that this application has been delayed by any fraud or false promises of defendants, or either of them, and the alleged offsets did not arise prior to judgment.
“ It does not show either the nature of offset attempted to be urged before Justice Fields, nor does it show upon what grounds proof thereof was denied by said justice.
“ It does not show why plaintiff Morris did not resort to his writ of certiorari.
“ It does not show that plaintiff’s set-off, of whatever nature it may be. and by whomsoever made, has long since been barred by any and all statutes of limitation governing personal actions, and moreover that the judgment sought to be enjoined has been affirmed by our appellate court after and on an appeal prosecuted by himself.”
On 30th November, 1883, the case was tried, and the district court .sustained the exceptions; and so far as the plaintiff in error was concerned, the injunction as to him was dissolved, and a writ of procedendo was issued commanding the justice of the peace to proceed to the collection of the judgment previously rendered in favor of the defendant in error Edwards, against the plaintiff in error Morris.
There is no new question’ presented by this record. This court has frequently held that the party seeking relief must not not only :show that injustice has been done him, but he must, in addition show that he has not been wanting in the proper diligence, and he must disclose clearly that there has been no negligence on his part. In this case there appears to have been a want of diligence as well
Affirmed.