Sharp v. Schmidt & Zeigler

62 Tex. 263 | Tex. | 1884

Willie, Chief Justice.

The injunction in this case was dissolved upon two grounds: 1. Because the petition did not state the character of the defense which the plaintiff in injunction alleged he could establish against the judgment enjoined; and 2. Because all the material allegations of the petition had been denied in the answer.

If either of these grounds is shown by the record, to have existed,, the injunction was properly dissolved.

It is fully established by our own decisions, “ that notwithstanding an illegal writ or service of process, a court of equity will not interfere to set aside a judgment until it appears that the result will be different from that already reached.” Schleicher v. Mark ward, 61 Tex., 103; Kitchen v. Crawford, 13 Tex., 516. To make this appear the petition should aver matters which amount to a good defense to the original action. The nature of the defense must be given, so that the court for itself may determine the conclusion of law as to whether or not it is a good defense, and would produce a different result if proved upon another trial. The plaintiff’s oath to such a conclusion is not sufficient.

A defense, too, might in some sense be good, i. e., sufficient to defeat the action, and yet not of that class of defenses to let in which a judgment will be set aside. It has always been the rule that when a judgment is sought to be reopened for any cause, in order to permit a defense to be made, which the defendant was prevented from proving upon the trial in which the judgment was obtained, the nature of the defense must be shown to the court. Foster v. Martin, 20 Tex., 118; Contreras v. Haynes, 61 Tex., 103; Johnson v. Templeton, 60 Tex., 238. The case of a judgment rendered upon defective or illegal service of process is no exception to the general rule.

The petition in this case merely stated that the plaintiff had a good defense to the action in which the judgment was obtained. The court having sustained a special demurrer on the ground that the character of defense was not alleged, and the plaintiff, upon leave for that purpose given, having declined to amend, the court properly dissolved the injunction and directed execution to issue upon the judgment temporarily enjoined.

It was not necessary to serve Solomon with notice of the amended original answer filed May 15, 1884. The sureties upon the injunction bond were practically parties to the suit, and liable to have any judgment rendered against them which was authorized by the pleadings and proof, at least to the extent of their bond. The extent of their liability upon a mere dissolution of the injunction was ten per cent, upon the amount released by the dissolution as damages for delay. R. S., art. 2894. But by appropriate pleading in reconvention on the part of the defendants, and proof of the necessary facts, judgment might be given against them to the limit of their liability upon their bond. Tex. & N. O. R’y Co. v. White, 57 Tex., 135.

The defendants, in their original answer, claimed a judgment against both principal and sureties for a greater amount than the ten per cent, damages allowed for delay, and attempted to set up facts which would entitle them to such a judgment. But the case made was an imperfect one, and the amendment of May 15, 1884, was intended to supply its defects and add facts which had occurred since the original amendment had been filed. The sureties were bound to take notice of the original answer, which was in reply and reconvention to a pleading they themselves had aided in bringing into court, and to which they were parties, and, of course, were charged with knowledge of all future legitimate amendments to such answer, properly filed in court. The fact that the amended answer of April, 1884, asked for service upon the defendants can make no difference. This amendment was irregularly filed, and was wholly superseded by that of May 15, 1884, which came in by leave of the court in term time. We think, therefore, that Solomon was as' much bound to take notice of this amendment, without service of process, as was his co-surety, who had been duly summoned to answer the pleading filed in April during vacation.

We do not see by the record that any objections were taken below to. the admission of Jenkins’ and Whitworth’s testimony for want of service of the interrogatories upon Solomon. It shows that Solomon was not served, but, if he did not object, the court had no authority to exclude the depositions of its own motion.

The objection raised below to Gooch’s evidence, as well as to a portion of Quarles’, was, that it tended to disprove matters set up in the supplemental petition to which the court had sustained exceptions. But it was also pertinent to the question of whether or not the injunction was sued out for delay, and as such was admissible. If some of Gooch’s and Quarles’ evidence was of a hearsay character, or of declarations made by Sharp not binding upon his sureties,— which questions herein it is unnecessary for us to pass upon,— no objection seems to have been made to the evidence on these grounds. We cannot take notice of objections made for the first time in this court. The assignment of error to the admission of evidence must rest upon the very objections taken to it in the court below. It may be added that so far as Quarles’ evidence relating to Sharp’s admission as to the value of the sheep is concerned, if it had been objected to upon grounds sufficient to exclude it, its admission by the court would not have been error for which the judgment would have been reversed. There was other evidence showing that the sheep were worth the original judgment and interest, and this court will not reverse for the admission of illegal testimony to a fact, when the case is tried by the judge alone, where there is other sufficient testimony to establish such fact.

[Opinion delivered October 21, 1884.]

The copies of deeds admitted in evidence were objected to because inadmissible under the cross-bill, and because Lessing was not a party to them and nob connected with them by the evidence. These are not the objections taken to them here, but it is assigned as error that they should not have been admitted because Solomon had no notice that they would be offered in evidence. In the reasons already given it is clear that this, objection, interposed for the first time in this court, cannot prevail.

The court correctly gave judgment for the amount enjoined, together with interest and costs. It having been abundantly proved that the sheep were worth enough at the time of the levy to pay the principal, interest and costs of the original judgment, this was the amount in which Schmidt & Zeigler were damaged by the acts of Sharp and his sureties in depriving them of the benefit of the levy.

This disposes of all such assignments of error as are of sufficient importance to claim our attention. There is no error in the judgment, and it is affirmed.

Affirmed.