Willis v. Gordon

• Decision Date: 01 January 1858
• Parties: D. WILLIS v. J. G. GORDON, EX'R, ETC.
• Court: Texas Supreme Court

22 Tex. 241

D. WILLIS

v.J. G. GORDON, EX'R, ETC.

Supreme Court of Texas.

1858.

The district court, having acquired jurisdiction of a cause originally cognizable before a justice of the peace, will retain it, to adjudicate all the matters in controversy, as presented by either party. 21 Tex. 186; 25 Tex. S. 384.

Judgments having been rendered before a justice of the peace, on notes improperly described as to dates, and without citation or legal notice to the defendant, and the same having been enjoined; it is not error in the district court, to dissolve the injunction, as to all except costs before the justice; and to render a decree, upon the same cause of action, at the cost of the defendant in the district court; unless the defendant have tendered the amount due before obtaining the injunction.

ERROR from Gonzales. Tried below before the Hon. Fielding Jones.

This action was brought in the court below by a petition for an injunction, to enjoin several judgments, obtained by defendant in error against plaintiff in error, before a justice of the peace, upon several promissory notes. The grounds complained of were that the plaintiff in error, who was defendant in the suits before the justice of the peace, by whom said judgments were rendered, was not legally served with citations, and had no notice of the pendency of the suits against him, until after the rendition of the judgments; and also, that neither the plaintiff in the justice's court, nor any other person, held notes against him, of the dates described in the proceedings before the justice of the peace. The injunction prayed for was granted. The defendant in error, in his answer to plaintiff's petition, admitted the rendition of the judgments before the justice of the peace, as charged, and averred that the justice of the peace verbally notified the plaintiff that the notes on which judgments had been rendered were in his hands for collection; and that the plaintiff verbally waived the issuance of citation, admitted the notes were just and acknowledged judgments. He also averred that the notes had been given to his testator; that they were just and entirely unpaid; and further averred that the true date of the notes was the 19th, instead, as appeared by the justice's proceedings, the 17th of October, 1855. A jury having been waived, and the cause submitted to the judge, the following decree was rendered:

“Wherefore, it is decreed by the court that the injunction be sustained as to the costs in the court below, and that the [plaintiff recover of the defendant ¹ ] the sum of four hundred and fifty-nine and 67-100 dollars, principal and interest to judgment, with legal interest till paid, and all costs of this court, and that plaintiff pay the costs in the court below.”

The errors assigned were: 1st. The court erred in rendering judgment against Willis, plaintiff in petition for injunction, after sustaining the injunction. 2d. That the judgment of the court was contrary to law, and not supported by the prayer.

H. S. Parker, for plaintiff in error. The defendant in injunction admits, in substance, that judgments had been rendered without service, and upon notes dated 19th October, 1855, and the defendant in error suggests delay. It does not appear upon what ground the court sustained the injunction, as to costs. If upon the ground that there was...