Pryor v. Emerson

22 Tex. 162 | Tex. | 1858

Roberts, J.

The court did not err in dissolving the injunction, upon motion, for want of equity in the petition. The plaintiff, Pryor, complains that the debt, upon which the judgment was rendered in the Justice’s Court, was part of a debt ever one hundred dollars, and that It was divided for the pimpese of giving jurisdiction to the Justice’s Court. He does not show that he did not participate in such division, or that he was deprived of any right or remedy, by the suits having been brought in the Justice’s Court, on the several notes which composed the original debt—as that he had a set-off for over one hundred dollars— and that these several notes had been thereby extinguished ; but that the Justice’s Court was not competent to entertain his defence, and give him his full relief. (Fulgham v. Chevaillier, 10 Tex. Rep. 518.) Some such equity is necessary to he shown, before the judgment will he enjoined. (Brady v. Hancock, 17 Tex. Rep. 361.)

The judgment was correctly rendered, upon the dissolution, for the debt and damages. (Lively v. Bristow, 12 Tex. Rep. 60; Cook v. de la Garza, 13 Id. 436 ; Hart. Dig. Art. 1603.)

Upon suek a judgment, the statute authorizes an execution to issue, as matter of eourse. (Hart. Dig. Art. 1603.) Where the petition is continued over for trial, the court must require a refunding bond, before ordering an execution. (Hart. Dig. Art. 1604.) There is here no such continuance over of the petition. Dor is there anything in the record, to show that such aetion of the court was requested. Indeed, it was not a suitable case for such aetion of the court, because the whole object of the suit was to obtain an injunction; and the ground of the motion, to dissolve the injunction, was the want of equity in the bilk The court, in sustaining this motion, necessarily determined the whole suit, and there was no necessity for delaying the execution until a refunding bond should he given.

This disposes of the two grounds of error assigned, to wit, sustaining the motion to dissolve, and ordering execution.

Another question presents itself, from the manner in which the judgment is rendered. If it appeared to he an interlocutory judgment only, it would not he a case of which this court could take cognizance. (Albright v. Mallory, 19 Tex. Rep. 106.) The judgment does not expressly dismiss the petition, as it should more properly hare done. But, considering the petition and the motion, and the absence of any request, or motion, to continue over tbe petition, and the fact that the judgment disposes of the whole subject matter of the litigation, it is reasonably certain that the judgment is final ¿ and so it was evidently regarded by the court and the parties. The writ, of error will not be dismissed, therefore, on account of such formal deficiency in the entry of the judgment. (Western v. Woods, 1 Tex. Rep. 1.)

Judgment affirmed.