Hale v. McComas

• Decision Date: 25 May 1883
• Docket Number: Case No. 3650.
• Citation: 59 Tex. 484
• Parties: V. W. HALE v. A. W. MCCOMAS ET AL.
• Court: Texas Supreme Court

59 Tex. 484

V. W. HALE

v.A. W. MCCOMAS ET AL.

Case No. 3650.

Supreme Court of Texas.

May 25, 1883.

APPEAL from Lamar. Tried below before the Hon. R. R. Gaines.

Suit by V. W. Hale against A. W. McComas and others, to enjoin the enforcement of a judgment rendered against him in favor of A. W. McComas & Co., on the ground that he had not been served with any process which required him to appear before the justice of the peace who rendered the judgment, and that he had a valid and just defense against the account on which the suit was brought. The petition was filed in 1875, and the cause was determined in November, 1877. On final hearing the court dismissed the cause for want of equity in the bill, and rendered judgment against the plaintiff and the sureties on his injunction bond for the amount of the judgment which was enjoined, and for ten per cent. damages. The plaintiff appealed and assigned errors.

V. W. Hale, for appellant, cited Mitchell v. Runkle, 25 Tex. Sup., 136; Masterson v. Ashcom, 54 Tex., 324;House v. Collins, 42 Tex., 486; Wade on Notice, secs. 1137, 1138; Wells on Res Adjudicata, secs. 503-505; Id., 498; Freeman on Judgments, sec. 495; McNeill v. Edie, 24 Kan., 108.

J. G. Dudley, for appellees.

WALKER, P. J. COM. APP.

The appellant assigns as error, “the ruling and judgment of the court in dissolving the injunction and dismissing the petition; and in rendering final judgment for defendants McComas & Co. on their original account against plaintiff and his sureties on the injunction bond, without giving the plaintiff an opportunity to be heard in his defense against said account.”

The first of these propositions is decisive of the latter; for, if the injunction was correctly dissolved, for want of equity in the bill, the proper judgment of the court upon that order would be to render judgment against the plaintiff and the sureties on his injunction bond for the principal sum enjoined, including the ten per cent. damages, unless the plaintiff sought to amend his petition after the court held the petition insufficient under said order. But here it does not appear that the plaintiff asked leave to amend his petition, or to otherwise provide for supplying the want of equity in his bill, nor to delay the hearing of the cause, in order that he might be enabled to meet the objections which had been sustained to his petition.

It is not error to dismiss a bill for injunction which is defective, where the plaintiff does not ask that it be continued for hearing with leave to amend. Gaskins v. Peebles, 44 Tex., 390. The same rule applies to the case of an interlocutory order dissolving the injunction, made on the hearing of an answer denying all equity in the petition, unless it appears from the record that the plaintiff asked that the petition be continued over for trial or hearing as an original petition or suit. Lively v. Bustow, 12 Tex., 60. If the plaintiff fails, when the ruling of the court is adverse to him, to call to its attention his wish to amend, or to continue over for a hearing, as the case may be, he cannot complain in the appellate court that the court below dismissed the entire proceedings. See Baldridge v. Cook, 27 Tex., 565. The proceedings had upon the motion seem to be in conformity with proper practice in such cases, as indicated by the opinion in Pryor v. Emerson, 22 Tex., 165-6. And see, also, Cook v. De la Garza, 13 Tex., 431.

The right of the plaintiff “to have an opportunity,” as he puts the proposition in the assignment of errors, to be heard in his defense, involved and was of the essence of the merits and gist of his bill in equity for relief by injunction; and the bill being wanting in merit to entitle him to relief, there was an end of his right to a hearing in his defense against the defendants' account. It was no longer an account, but had been merged into a judgment, which this suit sought to set aside and enjoin the enforcement of; and the plaintiff failing to show grounds for such relief, there remained no case before the court whereon to rest a hearing of the merits of the plaintiff's defense against the account.

It is quite true that the matters of original controversy between the parties to a judgment, the enforcement of which, on account of its invalidity or irregularity has been enjoined, will be taken hold of by a court of equity in an injunction suit brought to restrain and enjoin its operative effect; and having obtained jurisdiction and cognizance of the...