Raymond v. Conger

51 Tex. 536 | Tex. | 1879

Bonner, Associate Justice.

In August, 1875, appellee Conger filed his petition in the District Court to enjoin a judgment for the sum of $1,604, upon which execution had issued, which had been recovered against him, by default, by appellant Raymond, as administrator of Steiner, in June, 1875.

The ground for the injunction and new trial is, substantially, that the defendant was never served with process, although it is admitted in the petition that the return made by the sheriff on the citation shows a due execution of the writ; that the return was made through some mistake of the officer; that defendant did not know of the judgment until after the court adjourned; that he did not know that a petition had been filed in the case, and that he did not owe the debt on which the judgment was rendered, which he could show if a new hearing were granted.

The defendant filed an answer, not verified by oath, denying the averment that plaintiff in injunction had not been served with notice; averring that he “is informed by the sheriff' that the writ was served,” and that he “is informed and believes that plaintiff did have notice of the pendency of. the suit.”

He also filed a motion to dissolve the injunction for want of equity in the petition.

In August, 1875, the motion to dissolve was submitted to the court. A decree was entered overruling the same, perpetuating the injunction, and reinstating the case on the docket for new trial, without a hearing on the issues presented by the answer.

From this judgment Raymond appealed, and assigns as error, that the court erred in perpetuating the injunction without a hearing of the facts alleged in plaintiff’s petition.

Under the authority of the case of Taylor v. Fore, 42 Tex., 256, the judgment in this case is not such final judgment as can be appealed from, but is interlocutory only, and hence the appeal must be dismissed.

In thus dismissing the appeal, however, we deem it appropriate to say, that since, by authority of former decisions of this court, under our blended system, by which the District Court has not only the jurisdiction of a court of equity to restrain by injunction a judgment improperly obtained until a new trial could be had, but also that of a court of common law to again hear and determine the merits of the original suit upon new trial, the proper practice, in a case like the one now before the court, is to dispose of the whole cause, both upon the injunction and the merits, in the same proceeding, and not to reinstate the original case for subsequent final trial upon the merits. (Taylor v. Fore, 42 Tex., 256; Roller v. Wooldridge, 46 Tex., 485; Overton v. Blum, 50 Tex., 417.)

Dismissed.