Cox, Inc. v. Knight

• Decision Date: 18 May 1932
• Docket Number: No. 11304.,11304.
• Citation: 50 S.W.2d 915
• Parties: COX, Inc., v. KNIGHT et ux.
• Court: Texas Court of Appeals

50 S.W.2d 915

COX, Inc., v. KNIGHT et ux.

No. 11304.

Court of Civil Appeals of Texas. Dallas.

May 18, 1932.

Appeal from Dallas County Court; John A. Rawlins, Judge.

Forcible detainer proceedings by Epps G. Knight and wife against Cox, Inc. The justice court rendered a judgment in favor of the defendant, and on appeal to the county court a default judgment was rendered against the defendant. From an order denying the defendant's motion for a new trial, which was also denominated a bill of review to set aside, cancel, and hold for naught the judgment by default, the defendant appeals and applies for an injunction.

Application for injunction refused.

W. J. Rutledge, Jr., of Dallas, for appellant.

McCormick, Bromberg, Leftwich & Carrington, of Dallas, for appellees.

LOONEY, J.

Epps G. Knight and wife, Fannie L. Knight, on March 16, 1932, filed forcible detainer proceedings against Cox, Inc., in a justice court of precinct No. 1 of Dallas county, for restitution of a certain business lot and improvements located at 317-325 North St. Paul street, city of Dallas; although improperly cited, defendant appeared and answered the suit, which was tried March 31, 1931, resulting in a jury verdict finding defendant not guilty, and judgment followed accordingly. Plaintiffs gave notice of appeal in open court, perfected same, and a transcript, together with the original papers, was filed by the justice of the peace with the clerk of the county court before the first day of the first succeeding term of said court, which convened April 4, 1932. On April 6, 1932, the court rendered judgment against defendant, the material recitals that constitute its justification are these: "On this the 6th day of April, 1932, this cause having been called regularly for trial, came regularly on to be heard, and came the plaintiffs by their attorneys, and announced ready for trial, etc. * * * It further appearing that the defendant has failed to enter an appearance upon the docket of this Court on appearance day and before the case was called regularly for trial. Wherefore, it appears that the facts alleged in the complaint herein should be taken as admitted and that judgment by default should be ordered and entered. It is therefore ordered, adjudged and decreed that the defendant Cox, Inc., is guilty of forcible detainer of the premises described in the complaint herein and hereinafter described, and it is further ordered, adjudged and decreed that plaintiff, Epps G. Knight and Fannie L. Knight, have restitution for which let writ issue against the premises described in the complaint herein, to-wit (here follows description of the premises in question) * * * and further that plaintiffs do have and recover of and from the said defendant all costs of suit herein, for which execution may issue."

Thereafter, plaintiffs procured the issuance of a writ of restitution and placed same for execution in the hands of Hal Hood, sheriff of Dallas county, who was proceeding to execute same when defendant, on May 4, 1932, during same term of court, filed in the cause its motion for a new trial, which was also denominated by defendant a bill of review, to set aside, cancel, and hold for naught the judgment by default rendered on April 6, 1932. The motion is quite lengthy, but, as we view the case, it is not necessary to set out its contents at length, or to pass upon its legal sufficiency, although, for the sake of the discussion, it may be conceded that good grounds are alleged for a new trial, or, if the pleading is treated as a bill of review, that it states a cause of action good as against general demurrer. The prayer of defendant is: "Wherefore, premises considered, this defendant prays that this Court consider this petition not only as a motion for a new trial, but also as a bill of review of the judgment and proceedings had herein; that this Court set aside, vacate and hold for naught the judgment entered on April 6, 1932, herein; that because of the lack of jurisdiction this cause be dismissed from the docket of this Court; that in the alternative, if this Court shall hold that it has jurisdiction to hear and determine this cause, that the matters of fact herein alleged be determined by this Court upon evidence which this defendant will produce and here offers; that the judgment herein entered on April 6, 1932, be reviewed and, after a hearing, that such judgment be vacated, set aside and held for naught; that the process which has heretofore issued on such judgment, and which is now in the hands of Hal Hood, Sheriff of Dallas County, Texas, be recalled pending final action of such judgment herein; that the said Sheriff be restrained from proceeding further with the enforcement of such judgment pending the final action of the Court herein; and that this defendant have all such other and further relief, general and special, in law and in equity, as the Court may deem proper."

When the petition was presented to the county judge, the following order was indorsed thereon: "Upon consideration of the above application it is ordered, that upon applicants entering into a bond in the penal sum of $500.00 a temporary injunction will issue restraining the parties complained of from doing the things complained of; said temporary injunction to remain in force until the conclusion of the hearing on the 7th day of May 1932 at 9 o'clock A. M. or the further order of this Court."

The bond required by the order of the judge was given by defendant, and is: "Conditioned that the complainant will abide the decision which may be made therein, and that it will pay all sums of money and costs that may be made therein, and that it will pay all sums of money and costs that may be adjudged against it if the injunction be dissolved in whole or in part."

Plaintiffs filed an answer to defendant's motion, to which defendant replied by supplemental motion. The motion and answer came on for hearing May 7, 1932, hearing suspended and concluded May 12, 1932, resulting in an order overruling defendant's motion, in the following language: "It is accordingly ordered, adjudged and decreed that the defendant's said motion for a new trial is overruled, and that the temporary injunction granted herein on May 4, 1932, restraining Hal Hood, Sheriff of Dallas County, Texas, from executing the writ of restitution which has heretofore issued herein, is hereby dissolved. To which action of the Court the defendant in open Court duly excepted and gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, at Dallas."

All these proceedings were had during the same term of court at which the judgment by default was rendered. In this status, defendant, now appellant, made application to this court for injunctive relief, alleging that it is about to be ousted from the premises under the erroneous order of the trial court, and, unless restrained, the sheriff will execute the writ of restitution ejecting defendant and inflicting upon it irreparable damages, etc., praying "that a restraining order issue against Hal Hood, Sheriff of Dallas County, enjoining him from proceeding further under such writ of restitution until after said cause has been considered and determined by this court and proper order thereon entered herein."

Appellant's contention in support of the application is summed up in the following excerpt from the written argument filed by counsel, he says:

"In this case the appellant after default judgment had been rendered against it after the statutory time for filing a motion for new trial had expired, and after a writ of restitution on such default judgment...