250 S.W. 772 | Tex. App. | 1923
John O'Neil and P. L. Jennings filed a petition for a writ of injunction in the county court at law, Wichita county, seeking to restrain the sheriff of said county and James L. Duffy and J. T. Heffron from further proceedings against the plaintiffs on account of a certain judgment against them as sureties on a supersedeas bond. The supersedeas bond was filed in an appeal to this court from a judgment in the case of James L. Duffy and J. T. Heffron v. Roy Bell and G. J. Armstrong, in which cause the plaintiffs recovered judgment against the defendants, and on appeal to this court the judgment below was affirmed and judgment rendered against the appellants here as sureties. It appears that the judgment for plaintiff in the original suit was rendered on October 24, 1921, in the sum of $600. This docket entry does not appear to have been carried into the minutes of the court. It is noted on the judge's docket that "defendant excepts and gives notice of appeal and 60 days granted in which to prepare bills of exception and statement of facts." On October 26, 1921, the defendants in the original suit filed a motion for a new trial. On November 12th the defendants filed their supersedeas bond with the appellants here as sureties. On December 2 the motion for new trial was overruled. On November 4, 1922, this court affirmed the judgment of the trial court, and entered judgment against the sureties on the supersedeas bond and commanded the court below "to observe the order of our said Court of Civil Appeals for the Second Supreme Judicial District of Texas in this behalf and in all things for it duly recognized, obeyed, and executed." This mandate was issued December 18, 1922. On December 26, thereafter, the court below entered judgment upon the mandate of this court, which judgment was against the sureties on the supersedeas bond. The appeal to this court was on the supersedeas bond executed by the *773 defendants in the original suit as principals and appellants as sureties.
We are of the opinion that the instant suit is one in effect to enjoin the judgment of the Court of Civil Appeals, and, unless such judgment was absolutely void, that this cannot be done. The interpretation and enforcement of a judgment of a superior court belongs exclusively to that court as between it and an inferior court. Conley v. Anderson (Tex. Sup.) 164 S.W. 985; McCrimmin v. Cooper,
"Where the judgment is in the lower court, either by reason of its original judgment having been simply affirmed or a judgment having been entered by it in pursuance of the mandate of the appellate court or the judgment of the appellate court having been sent back to it for execution, the lower court has power to enforce it, by execution or otherwise, as it finally stands or should stand, without variation; and the effect of the determination on appeal is to deprive the lower court of the determination on appeal is to deprive the lower court of power to stay, enjoin, or interfere with the enforcement of the judgment, except as against third persons not bound by it, or in cases where the judgment has been paid and satisfied. Also after a judgment has been affirmed on appeal or a writ of error has been dismissed, and the mandate has been filed in the lower court, a stay of execution pending the appeal or error proceedings is nugatory, and an order vacating it is unnecessary."
The fact that notice of appeal given in the court was not entered by the clerk does not deprive the appellate court of jurisdiction. W. U. Tel. Co. v. O'Keefe,
We do not think that it affirmatively appears from the record of the original case that the judgment rendered in the lower court and in this court was void. We think undoubtedly the defendants in that suit could have appealed without making any motion for a new trial, the cause having been tried before the court without the intervention of a jury, and that, an appeal bond having been filed prior to the overruling of the motion for a new trial, it must be held that in fact the appeal was taken from the original judgment, rather than from the judgment and order of the court overruling a motion for new trial. In Owen v. Terrell,
Appellee urges that a failure to show any excuse for not applying to this court for a rehearing is fatal to the appellants' right to enjoin the enforcement of the judgment of this court. He cites such cases as Wichita County Lbr. Co. v. Maer (Tex. Civ. App.)
We have read the authorites relied on by appellants to sustain their contentions, but do not believe that such authorities do sustain them.
The judgment of the trial court is affirmed. *774