New Amsterdam Casualty Co. v. Harrington

297 S.W. 307 | Tex. App. | 1927

CONNER, C. J.

This appeal is from an order of Hon. P. A. Martin, District Judge, denying an application of the appellant, New Amsterdam Casualty Company, for a writ of injunction.

Appellant’s petition for the writ alleges:

“That on or about the middle of March or April, 1927, defendant (appellant) made a full andcomplete settlement with the plaintiff, which settlement was made at the instance of the plaintiff and his wife, Grace K. Harrington, under the terms of which defendant paid over to the plaintiff the sum of $2,200, and took from him a receipt therefor.

“That said settlement was made after the Supreme Court had reversed a former judgment rendered by the district court of Wichita county, Tex., in favor of plaintiff, and held, in substance, that upon the cause pleaded by plaintiff, as applied to the admitted facts in the case, there was no liability on the part of defendant to plaintiff.”

It was further alleged in substance that the settlement referred to was made upon the solicitation of the plaintiff, Harrington, and with which plaintiff and his wife expressed gratitude. It was further alleged that:

“Defendant shows that it now appears that plaintiff is attempting to repudiate said settlement made under the circumstances aforesaid; that in so doing he either acted in bad faith when he presented said application for settlement to defendant and did so with the intent to defraud defendant, or he has since been persuaded to .act in bad faith and with the intent to defraud.”

The foregoing allegations are followed in separate clauses by an offer to rescind the settlement mentioned upon .plaintiff being required to pay into the registry of the court for the use and benefit of the defendant, the said sum of $2,200, in which “event defendant will cancel out and hold for naught said agreement for settlement made as above set out.” It is further alleged that:

“In event plaintiff should refuse to return said amount of $2,200 paid by defendant to him as aforesaid, and shall further insist on the further prosecution of this cause against defendant, it further prays:

“(1) That a receiver shall here and now be appointed by theN court with authority and instruction to take possession of said sum of $2,200 so paid by defendant to the plaintiff, and that plaintiff shall be ordered and required to pay over said sum of money to the said receiver.

“(2) That a writ of injunction shall issue herein against plaintiff, enjoining and restraining him from the further prosecution of this cause, and from asserting any claim of any sort against defendant on account of the matters and things set out in his petition herein until he shall return to defendant or pay over to a receiver to be appointed by this court said sum of $2,200 so paid by defendant to him as above set out.

“(3) That defendant shall have such other and further relief as the facts, upon the hearing of this application, shall require in law and in equity.”

Upon the petition so presented, the judge made the following indorsement:

“The above and foregoing petition being this day presented to me, and being by me fully considered, the writ of injunction prayed for is refused. P. A. Martin, Judge.”

It is from this order the appeal has been prosecuted, as before stated..

It is evident that appellant’s offer to rescind was conditional, and not made effective either by an acceptance on the part of the plaintiff in the suit, Harrington, or by the appointment of a receiver with orders to take possession of the money and deposit it in the registry of the court. And no complaint is now made because of the failure to appoint a receiver as prayed for. The complaint is that the court erred in refusing to issue the writ of injunction. No further reference therefore, to the offer of rescission or the failure of the' court to appoint a receiver will be made.

The transcript makes it evident that the application for the writ of injunction was filed in a suit styled Charles F. Harrington v. New Amsterdam Casualty Company (No. 16838C), but the pleading of .the plaintiff in that case is not presented in the transcript, and we are left without knowledge of the cause of action asserted by tbe plaintiff, or of tbe defense, if any', therein presented by tbe appellant company. It seems plain to us that tbe petition for injunction fails to present a cause requiring tbe issuance of tbe writ as prayed for. Tbe plea of settlement and -payment in accordance therewith as alleged was a complete transaction, and constitutes a good plea in bar of'the prosecution of tbe suit of Harrington indicated by tbe transcript. No reason is alleged why this plea may not be presented and maintained by appellant in event plaintiff Harrington shall insist upon tbe further prosecution of bis suit. Tbe trial of tbe issue thus presented can be as- well and as expeditiously determined then as in this proceeding. In other words, appellant shows that it has a legal remedy that may be exercised by it in tbe proper forum without prejudice.' Appellant insists that it is given a statutory right to an injunction without a showing of any equitable reasons therefor. Tbe statute (R. S. 1925, art. 4642), so far as applicable, declares :

“That judges of the district and county courts shall, in term time or vacation, hear and determine appbeations for and may grant writs of injunction returnable to said courts in the following cases:

“1. Where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.

“2. Where a party does some act respecting the subject of pending litigation or threatens or is about to do some act or is procuring or suffering the same to be done in violation of the rights of the applicant when said act would tend to render judgment ineffectual.

“3. Where the applicant shows himself entitled thereto under the principles of equity, and the provisions of the statutes of this state relating to the granting of injunctions. * * * ”

Appellant cites the ease of Republic Insurance Co. v. O’Donnell Motor Co., 289 S. W. 1064, by tbe Dallas Court of Civil Appeals, and stresses tbe following quotation from that opinion:

“Our statute has enlarged the rule at equity. Article 4642 (4643) (2989), Rev. St. 1925, subd. 1, provides that an injunction may be granted ‘where the applicant is entitled to the relief demanded and such relief or any part thereof requires the restraint of some act prejudicial to him.’ The authority to grant the writ in cases within the meaning of the quoted provision of the statute does not depend in any sense on a showing that there exists no adequate remedy at law. If a case comes within the meaning of the statute, the right to the writ is clear without such showing” — citing numerous cases.

In that case it appears tbat the motor company held a policy of fire insurance for $7,000, covering a building and certain merchandise that were destroyed by fire. Immediately thereafter some four or five credi-. tors of tbe motor company instituted suits in the county and district courts of Lynn county against tbe motor company in actions of debt, and bad tbe insurance company served as garnishee. Tbe insurance company answered tbe proceedings, denying tbat it was indebted to tbe motor company or had effects belonging to it in its possession. These answers were not traversed by tbe creditors. In this state of tbe case the insurance company filed suit in tbe district court of Dallas county against tbe motor company, seeking cancellation of tbe policy of insurance on several grounds. Tbe creditors were made parties to tbe suit, and an injunction was sought to restrain them from further prosecuting tbe writs of garnishment or any claim against appellant arising out of the issuance of tbe policy of insurance. A temporary writ of injunction was granted, and served. Later two of tbe creditors filed suit in tbe district court of Lynn county against tbe insurance company on tbe policy of insurance, claiming to be tbe owners of an assignment made to them by tbe motor company. Later, counsel, representing the motor company and tbe creditors mentioned, and tbe counsel for tbe insurance company, had a conference and agreed on a settlement of tbe litigation. This settlement was carried into effect by a judgment in favor of tbe motor company and against tbe insurance company for tbe sum of $2,500. Some time after this tbe insurance company was served with a writ of garnishment issued out of tbe district court of McLennan county by au-other creditor of tbe motor company, whereupon appellant, tbe insurance company, filed in tbe cause pending in tbe court .wherein tbe judgment above referred to bad been entered a plea setting out tbe facts referred to, alleging tbe insolvency of tbe motor company, tbe conflicting claims of tbe creditors to tbe fund, and prayed tbat a receiver be appointed to take charge of tbe fund, and that tbe creditors be brought into court and their conflicting claims adjudicated to tbe end tbat appellant might be fully protected, etc. In this state of tbe case, tbe Dallas Court of Civil Appeals held that tbe insurance company was entitled to tbe writ of injunction prayed for, restraining tbe further prosecution of creditors’ suits pending at tbe time of tbe settlement in the district court.

It thus appears that' thé case determined by tbe Dallas court is plainly distinguishable from tbat presented to us. A favorite ground of equity for an exercise of its equitable remedy by injunction is tbat of thereby preventing a multiplicity of suits and affording relief not otherwise readily obtainable, and we find no fault with tbe conclusion reached by tbe Dallas court in that case, but we do not feel prepared to accept as applicable here tbe broad statement contained in tbe quotation tbat “tbe authority to grant tbe writ [of injunction] in cases within the meaning of the quoted provision of the statute does not depend in any sense on a showing that there exists no adequate remedy at law.” Indeed, it seems to have been otherwise expressly decided in the case of Hill v. Brown, 237 S. W. 252, by Section A of our Commission of Appeals, adopted by the Supreme Court. It is said in that case, quoting from the headnote:

“An injunction will not be granted to a person who has a plain and adequate remedy at law, which is as efficient as the remedy in equity.”

As already indicated, we think it plain that appellant has an adequate remedy at law in the present case, and, under the authority of the ease last stated, we conclude that the trial court did not err in refusing the injunction.

The judgment is accordingly affirmed.