16 Tex. 410 | Tex. | 1856
The material ground of equity, in the appellant’s petition, is, that when the suit was brought against him, on his note of hand, he had made an arrangement with the counsel in the suit, by which he was, on a certain day, to pay, in the notes of the Republic, the amount of the debt, for which, he gave his note for twenty-nine hundred dollars, payable in the notes aforesaid, payable about the first of September following. This was in the year 1841, and the suit was, by the said agreement, to be dismissed ; and the note, so given, was to be received in full payment and discharge of the note sued on ; that, in contravention of the said agreement, the said suit was prosecuted against him, and on the 10th of April, 1844, judgment was given against him for two thousand, two hundred and fifteen dollars, debt, and five hundred dollars interest, without the knowledge of the petitioner; and that execution has been sued out against him for the amount, with an indorsement on the execution, by the attorney for the plaintiff, to the effect that the Sheriff make out of the property of the petitioner, the sum of seven hundred and fifty dollars, with interest and cost; and that the Sheriff, but for the timely intervention of an injunction, will proceed with the said execution. This petition was filed in July, 1848. The record of the suit against the appellant, is made a part of the defendant’s answer. It shows that the appellant was represented by counsel in that suit, from the return Term it was passed into a final judgment, and nq ^iki&%tde^cjmy him. ^
The presumption of law, in effect, the/raid-Wf S®lQ|)Mat every man knows the records of th# proceedings of omr Courts, after he has been brought into \CotmR ^$k^5mMof fact, he may not have known, himself; yevbysMsxjpansel; he did know it. It appears that the suit was pending after the alleged compromise, about three years, before judgment; and it was four years more, before the appellant filed his petition, showing too much negligence on the part of the appellant and
It further seems to the Court, from the record and proceedings in this case, that the appellant has not any cause of complaint. He might have had the judgment reduced to the par value, perhaps, of his note ; and would have had cause of complaint, if the plaintiff in the judgment had sought to collect the ■amount of the judgment, in par money ; but he only seeks to collect, on the execution, the sum of seven hundred and fifty dollars, with interest and cost. This amount, or near about that amount of par money, would be due to the plaintiff in the execution, according to the showing of the appellant himself.
We believe, therefore, that there is no ground upon which we ought to reverse the judgment and decree of the Court below, as it fixes the amount indorsed by plaintiff’s attorney on the execution, as the basis of its decree, and the appellant is in elo danger of having execution enforced, for the whole amount of the judgment, that had been rendered against him. The judgment is affirmed.
Judgment affirmed.
