Carey v. Looney

• Decision Date: 06 June 1923
• Docket Number: (No. 369-3378.)
• Citation: 251 S.W. 1040
• Parties: CAREY v. LOONEY et al.
• Court: Texas Supreme Court

Page 1040

251 S.W. 1040

CAREY v. LOONEY et al.

(No. 369-3378.)

Commission of Appeals of Texas, Section B.

June 6, 1923.

Certified Questions from Court of Civil Appeals of Third Supreme Judicial District.

Suit by Mary J. Carey against Ike Looney and others. From decree of dismissal, plaintiff appealed to the Court of Civil Appeals, which certified a question to the Supreme Court. Question answered.

W. A. Morrison, of Cameron, for plaintiff.

Scott & Ross, of Waco, and Henderson, Kidd & Henderson, of Cameron, for defendants.

McCLENDON, P. J.

The Court of Civil Appeals has certified to the Supreme Court the question whether R. S. art. 4653, which provides that:

"Writs of injunction granted to stay proceedings in a suit, or execution on a judgment, shall be returnable to and tried in the court where such suit is pending, or such judgment was rendered,"

— has application to a suit brought to enjoin the execution of a writ of possession of real estate in actual possession of plaintiff in injunction suit sold under order of sale upon a judgment to which the plaintiff in the injunction suit was not a party.

The certificate gives the following clear and succinct statement of the case and the manner in which the question arises:

"On June 21, 1917, Ike Looney, as plaintiff, filed a suit in the district court of McLennan county against the Ben Arnold Mercantile Company and against W. P. Carey and D. J. Young, as members of such firm. It was alleged that both defendants resided in Cook county, Ill., but were doing a mercantile business at Ben Arnold, in Milam county, Tex.

"A writ of attachment was issued and levied upon the land in controversy, as the property of Ben Arnold Company and B. J. Young, one of the partners. Service was by publication, and judgment was rendered against defendant, Ben Arnold Mercantile Company, and the individual partners, jointly and severally, for about $3,900; and the attachment lien was foreclosed upon the property in controversy, and levied upon as the property of Ben Arnold Company and B. J. Young, one of the partners.

"The judgment awarded the plaintiff, Ike Looney, an order of sale, directing the sheriff of Milam county to sell the property, or so much thereof as might be necessary to satisfy the judgment.

"The order of sale was issued and was executed by levying upon the land in suit, which was sold thereunder to the plaintiff, Ike Looney, including the improvements on the property, the bid being credited on the judgment; and was returned to the district court of McLennan county, without placing the purchaser in possession.

"On the day of the sale, November 6, 1917, appellant in this suit, Mary J. Carey, instituted this suit in the district court of Milam county, alleging that she was the owner of the land, and that her title was of record in Milam county long before the institution of the suit in McLennan county, and that she was not a party to the McLennan county suit, had no notice of the same, and had not appeared therein. She further alleged that she was in possession of the property through tenants, and had a store building on part of the land, in which her tenants had a stock of merchandise, exceeding $5,000 in value; that for the sheriff to give the purchaser possession under the order of sale would require her tenants to be dispossessed, and their property injured, and would cause her great injury; and she prayed for an injunction to restrain the appellee and the sheriff from executing the writ of possession, and from disturbing her and her tenants in the lawful possession of the property.

"The district judge granted a temporary writ of injunction, but did not make the same returnable to the district court of McLennan county. Thereafter an amended petition was filed by Mrs. Carey, in which she alleged that the judgment of the district court of McLennan county was absolutely void as to her, and as to the foreclosure of the attachment lien on her property, and seeking to restrain the appellant and the sheriff from enforcing such judgment and writ of possession, and from obtaining or enforcing any other writ of possession, and praying that the cloud cast upon her title by the sale and sheriff's deed be canceled and removed.

"The appellee Ike Looney filed a motion, asking the court to dismiss the cause for want of jurisdiction, because it was a suit for injunction to stay execution, and to interfere with the enforcement of the judgment rendered in the district court of McLennan county; and that by law such a suit was returnable to the McLennan county district court, in which the judgment was rendered. This motion was sustained, the temporary injunction dissolved, and the cause dismissed. The order of the court provided that the temporary injunction, however, should remain in force, pending the appeal, upon the filing of an appeal bond by the appellant, which has been done. Mary J. Carey has appealed, and assigned error upon the action of the trial court in dismissing her suit, which assignment presents a material question."

The question certified reads: "Does article 4653 apply to this case?"

We deduce from the decisions of the Supreme Court from the earliest times the uniform holding that the object of the statute was to protect the judgments and processes of one court from interference by another by direct attack. As was said in Ins. Co. v. Klaras (Tex. Com. App.) 222 S. W. 208:

"One of the evident purposes of its enactment was to afford a means for putting an end to litigation by preventing a defeated party from proceeding from one court to another, after his defeat, or in the hope of avoiding defeat, in an attempt to relitigate the case."

The test of jurisdiction in such cases is whether the relief sought may be granted independently of the judgment or its mandate sought to be enjoined. If, in order to grant the relief, it is necessary to set aside or modify the judgment, or to regulate the processes issued thereunder, and the attack is made by a party to the judgment, the statute is mandatory and requires that the injunction suit be returnable to and tried in the court rendering the judgment. On the other hand, if the court in which the injunction suit is brought has general jurisdiction over the subject-matter, and the relief may be granted, independently of the matters adjudicated in the suit whose judgment or processes thereunder are sought to be restrained, the statute has no application. Consequently it has been held that where the judgment is not void, but merely voidable, or the processes under it irregular, a party to the judgment cannot maintain a suit in another court to enjoin its enforcement. Hendrick v. Cannon, 2 Tex. 259; Winnie v. Grayson, 3 Tex. 429; Cook v. Baldridge, 39 Tex. 250; Seligson v. Collins, 64 Tex. 314.

Where, however, the judgment sought to be enjoined is void, and not binding upon the parties to it, the statute has no application. Bender v. Damon, 72 Tex. 92, 9 S. W. 747; Cotton v. Rhea, 106 Tex. 220, 163 S. W. 2; Ketelsen v. Pratt (Tex. Civ. App.) 100 S. W. 1172. Quoting from Cotton v. Rhea (opinion by Justice Phillips):

"Our view is that if the judgment was a nullity as affirmatively disclosed by the record, it was subject to such collateral attack in any competent court otherwise vested with jurisdiction of the immediate action in which it might be challenged; that the authority of the court to restrain the enforcement of such a judgment is uncontrolled by article 4653, but proceeds from its power, in the exercise of a jurisdiction otherwise appropriately invoked, to protect rights from the operation of a void proceeding."

The same general principles have been applied to actions to enjoin the enforcement of executions. Where specific property has been levied upon under a general execution, the levy and sale may be enjoined in another court, even by a party to the suit. The ground of such holding is that the injunction of a sale of specific property, on the claim that it is not subject to the levy, is not a stay or interference with the processes of another court. This holding has been frequently applied where the property levied upon was claimed to be exempt by the defendant in execution. Van Ratcliff v. Call, 72 Tex. 491, 10 S. W. 578; Cotton v. Rhea, above; Leachman v. Capps, 89 Tex. 690, 36 S. W. 250; Grocery Co. v. Peter, 35 Tex. Civ. App. 49, 80 S. W. 108 (writ of error refused).

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