54 S.W.2d 217 | Tex. App. | 1932
This is an appeal from an order granting a temporary injunction against Southern Sales Company, C. Huggins, and H. J. Wilkinson, restraining them from levying an execution issued by the justice of the peace of precinct No. 1 of Grayson county, Tex., on property of Sam Parker, Mrs. Judy Parker, and F. K. Parker of San Augustine county, plaintiffs in this suit.
Plaintiffs alleged in their petition that they and the defendant Southern Sales Company had some character of business dealings, but that the defendant Southern Sales Company would not adjust a matter growing out of such transactions as plaintiffs thought right, and that the Southern Sales Company brought suit against them on an open account in justice court, precinct No. 1, Grayson county, Tex.; that they filed a plea of privilege to be sued in San Augustine county and employed an attorney to look after the case for them; that their attorney did not notify them of the overruling of their plea of privilege, and, on August 24, 1931, wrote them that the case was set for trial on the 28th day of August, A.D. 1931; that at the time this letter was written judgment had theretofore, on July 9, 1931, been rendered against them. The judgment was for $168.12. It was further alleged that the judgment was for a greater sum than they owed the Southern Sales Company, and that an execution had been issued on said judgment and placed in the hands of H. J. Wilkinson, one of the defendants in this suit, he being sheriff of San Augustine county, Tex. There is nothing in the petition to show why C. C. Huggins was made a party. It was alleged that the execution was issued on a void judgment, and that, unless the defendants in this suit were restrained, a levy would be made on their property. This petition was sworn to by F. K. Parker, one of the plaintiffs, and was presented to Hon. G. E. Richardson, district judge of the first judicial district, on December 18, 1931. He indorsed on the petition an order granting the injunction upon plaintiffs' giving bond, which bond was duly filed and a writ of injunction issued. The appeal is before us solely on the allegations contained in the petition.
Appellants say that the injunction was improperly granted because it is not shown that the judgment out of which the execution issued was void, but that, if the judgment was void or was improperly rendered, the defendants therein should have exhausted their legal remedies of appeal, certiorari, or proceedings in the nature of a bill of review in the court rendering the judgment.
From the allegations of the petition the judgment rendered in the justice court of precinct No. 1 of Grayson county, Tex., was not void. The amount involved was within the jurisdiction of the court, and it is alleged that they were served with citations and employed an attorney to represent them in the case. In Cotton v. Rhea,
The court then held that the judgment under consideration was not void because the county court had complete jurisdiction to try the cause, and held that however erroneous the judgment of the lower court might have been, the district court had no jurisdiction to grant the writ of injunction. In Mann v. Brown,
The petition does not allege any fraud, accident, or mistake in procuring the rendition of the judgment in the Grayson county suit. The only complaint made in procuring this judgment is that their own attorney did not notify them of the setting of the case for trial and that he gave them wrong information as to the facts. Nothing is charged against the plaintiff in that suit. This certainly would not justify the issuance of an injunction by one court restraining the execution of a judgment in another court unless the judgment was void on its face. In Clayton v. Stephenson (Tex.Civ.App.)
If plaintiffs in this suit could get any relief by reason of their attorney's negligence, they would certainly have to show that they had exhausted all of their legal remedies before an injunction could be granted in any court. It is not alleged when they learned of the rendition of the judgment. At the time they received the letter from their attorney on August 24, 1931, they had ample time in which to remove the case to the county court by certiorari. Rev.St. art. 946. In the case of Clayton v. Stephenson, supra, it is said: "But relief against judgments cannot be granted on the ground that, as the result of the ignorance, neglect, or mistakes of a litigant's lawyers, his rights were not fully protected in the litigation closed by the judgment."
Injunctions will not be granted to restrain the execution of a void judgment where the parties have had an opportunity to have the judgment reviewed by appeal, writ of error, or other legal methods. In Tex. Mex. Ry. Co. v. Wright,
The Commission of Appeals, in Svoboda v. Alexander, 3 S.W.2d 423, 424, said: "When a judgment purports to have been rendered by a justice court, in a suit of whose subject-matter the court has jurisdiction, the absence from the justice court record, or from the judgment itself, of a recital of the specific facts upon which the validity of the judgment depends, does not invalidate the judgment or destroy the presumption of regularity in its rendition."
The decision held that the district court had no authority to grant the injunction because the judgment did not on its face show to be void. It was further held in the same opinion that, before the execution of a judgment can be enjoined, the parties must exhaust their legal remedies of appeal or certiorari. Judge Speer, in Southern Surety Co. v. Texas Oil Clearing House (Tex.Com.App.)
In a late case by the Galveston Court of Civil Appeals, Burris v. Myers,
The petition in the case under consideration does not allege a meritorious defense to the cause of action in the justice court. It is merely alleged that the judgment was for a greater amount than the plaintiffs owed. The amount of the excess is not shown and no facts are alleged to apprise the court of the nature of the defense they had to such excess. If plaintiffs are contending that the judgment was procured by fraud, accident, or mistake, before they can get relief, after the close of the term, it is necessary for them to show that they had a meritorious defense and that the failure to avail themselves of such defense was not the result of negligence or want of diligence on their part. In such cases the court in which relief is sought examines the entire case and renders such judgment as equity demands. The petition in this case is wholly insufficient for such purpose. Overton v. Blum,
The judgment of the lower court granting the temporary injunction is reversed and the injunction dissolved.