Holman v. G. A. Stowers Furniture Co.

• Decision Date: 17 April 1895
• Court: Texas Court of Appeals
• Parties: HOLMAN et al. v. G. A. STOWERS FURNITURE CO.<SMALL><SUP>1</SUP></SMALL>

30 S.W. 1120

HOLMAN et al. v. G. A. STOWERS FURNITURE CO.¹

Court of Civil Appeals of Texas.

April 17, 1895.²

Appeal from district court, Bexar county; S. G. Newton, Judge.

Petition of D. Holman and others for an injunction to restrain the G. A. Stowers Furniture Company from enforcing a judgment. From a judgment sustaining a demurrer to the petition, petitioners appeal. Affirmed.

James Raley, for appellants.

JAMES, C. J.

A writ of certiorari was granted by the district court in reference to a judgment recovered in the justice's court by appellee against appellants and their sureties on a claim bond, viz. J. B. Patterson, S. M. Ellis, James Raley, and B. Stephenson. The writ was granted upon the application of all the said judgment defendants in February, 1892. The cause came on for trial in the district court in January, 1894, when appellee filed a plea in abatement, which was sustained, and a judgment entered "dismissing the cause, and adjudging that appellants Holman and Higgins take nothing by the suit, and that defendants pay all costs incurred in this court, and ordered execution, and a writ of procedendo to the justice's court, commanding it to execute its judgment heretofore rendered." Afterwards, at the same term, appellants applied for a new trial on account of alleged errors, which was overruled. Afterwards, at the same term, they filed another motion, asking that the judgment be set aside, for two reasons, — one being that the judgment as entered was not final, as only disposing of the case as to some of the defendants; the other being the fact that one of the applicants for the writ of certiorari (S. M. Ellis) was dead at the time the judgment was rendered, and no action had been taken towards making his representatives parties, and therefore the judgment as entered was erroneous. This motion was also overruled, and notice of appeal given, but not prosecuted. On December 19, 1894, the petition was filed upon which the case is brought here. It is a petition by appellants asking for an injunction to restrain appellee from enforcing or attempting to enforce said judgment by the issuance of procedendo or otherwise, and asking that the case be tried anew on its merits. The court sustained a general demurrer to the petition, and the present appeal has been taken from the order.

The petition for injunction alleged, in substance, the above facts, and alleged the judgment to be as in quotation marks above. The judgment, it seems to us, was...