Edrington v. Allsbrooks

• Decision Date: 01 January 1858
• Parties: E. H. EDRINGTON v. LAWRENCE ALLSBROOKS.
• Court: Texas Supreme Court

21 Tex. 186

E. H. EDRINGTON

v.LAWRENCE ALLSBROOKS.

Supreme Court of Texas.

1858.

As to the verification of a petition for injunction. 116 Tex. 136.

A suit against an absent person being of an ex parte character, the plaintiff should at least strictly pursue the rules of procedure before judgment.

A debtor who seeks to enjoin a void judgment, is not obliged to bring the money into court before he can claim its aid. 22 Tex. 241; 25 Tex. S. 384.

Judgments against garnishees are dependent on the judgment against the defendant or original debtor; that being void, the others fall with it.

Error from Grimes. Tried below before Hon. P. W. Gray.

Petition for injunction alleges that while the petitioner was absent from the state, suit was instituted against him by the plaintiff in error, and a judgment recovered against him for $97.67, and also judgment against other parties as garnishees. That the return of service in these words, “The within writ was ordered to be published on the 25th July, 1856, which has been done according to law, (signed) M. Mays, Constable,” was insufficient; and that the citation, if published at all, was by one insertion for one week only in a newspaper. The petition was sworn to by the attorney for the petitioner.

The plaintiff in error moved to dissolve the injunction. 1st. Because the petition was not sworn to according to law. 2d. Because it does not deny the justice of the judgment, nor the existence of a debt. 3d. Because the petitioner had his remedy by review, and because he had not tendered the money due into court. This motion was refused, and injunction perpetuated, and judgment rendered against Allsbrooks for $97.67.

J. Sayles, for plaintiff in error. The court erred in not dissolving the injunction and dismissing the petition.

I. The petition was not verified by the proper person. Hart. Dig. art. 1597.

II. The affidavit is based upon information and belief only, and does not state the material facts in positive and unequivocal terms. 3 Dan. Ch. Pr. 1834, note 1; 7 Paige, 157;9 Id. 305;8 Id. 72.

III. While it is not denied that the debt was justly due the defendant in the injunction, it was not tendered or paid into court. The plaintiff being a non-resident, the defendant is left without the means of enforcing the payment of his debt, and is responsible for all of the costs. The plaintiff, before the equitable interposition of the court in his behalf, should have been required to do equity by paying the money into court, or at least the judgment against the garnishee should have been held as security for the payment of the debt.

J. W. Hutcheson, for defendant in error.

I. As to the first ground of dismissal, it is deemed needless to do more than to cite the court to Wright v. Williams, 12 Tex. 36, by Justice Wheeler.

II. This is somewhat different from the case of Mills v. Howard, reported in 12 Tex. 9. In that there was a distinct allegation of plaintiff's non-residence. This simply states that he is “staying in Tennessee.”

III. We refer you, as to what the clerk in his citation should state, to Wheeler v. The State, 8 Tex. 231.

And for 4th cause to 8 Tex. 228, and 10 Id. 352. He had no right to issue citation to the attorney under the records in this case.

This we rely upon as amply sufficient to dismiss the case. That there was no service at all. See 17 Tex. 647 and 4 Id. 307. The proceedings being all thus irregular and no service at all, the judgment was a nullity, and being a nullity, the injunction was properly perpetuated.

There was no necessity for offering to do equity, or pay any thing, for there was no presumption of indebtedness created by a void proceeding.

HEMPHILL, CH. J.

The petition for injunction was verified by the proper person. The statute of 1846 (art. 1597, Hart. Dig.) declares that the petition shall be verified by the oath of the party, and unless there had been further provision, it might have been doubted whether the attorney, though fully cognizant of the facts, could by his oath have satisfied the law. But the act of January 11th, 1856, gives to the affidavit made by the attorney the...